KSM, the VictimFebruary 16, 2008; Page A10WSJOn Monday, some six years after 9/11, military prosecutors filed charges against Khalid Sheikh Mohammed, al Qaeda's foreign-operations chief, along with five of his conspirators. They will stand before a military tribunal, and if convicted they could face execution. And as if to prove that the U.S. has lost its seriousness and every sense of proportion, now we are told not that KSM is a killer, but a victim.

The victim, supposedly, of President Bush. Opponents of military commissions (including Barack Obama) want KSM & Co. turned over to the regular civilian courts, or at least to military courts-martial; anything else is said to abridge American freedoms. This attitude is either disingenuous or naïve, or both, because it is tenable only by discounting the nature of the attacks and the enemies who carried them out.

* * *

KSM himself has made plain the extent and ambition of his world war. "I was responsible for the 9/11 operation, from A to Z," he admitted during a hearing in March last year. He planned the 1993 World Trade Center attack, the 2002 bombings of the Bali nightclubs and the Kenya hotel, among 31 actual attacks. KSM was an architect of the Bojinka plot in 1995; by his own confession he drew up plans for strikes in South Korea, Thailand, Indonesia, the Philippines, Panama, Israel, Brussels and London, plus a "new wave" of post-9/11 attacks on L.A., Seattle, Chicago and New York.

These are not ordinary crimes. "For sure, I'm American enemies," said KSM in his broken English. "When we made any war against America we are jackals fighting in the nights. . . . the language of the war are killing." The proper venue to address his mass crimes against humanity is not some civilian jurisdiction. Terror cases committed as acts of war, by their very nature, require a separate judicial process.

The U.S. effort to bring it about was long delayed by legal challenges. Yet with the Constitutional guidance of the Supreme Court's Hamdan decision, Congress and the President established a deliberate framework for prosecuting "unlawful enemy combatants" in the 2006 Military Commissions Act.

Yet now anti-antiterror activists are attempting to make the process a referendum on the Bush Presidency or "torture" or whatever. Purportedly the tribunals are illegitimate because they do not afford every last Miranda right or due-process safeguard of the civilian courts. The key and appropriate distinction is that foreign terrorists are not entitled to the protections of the U.S. Constitution. They also violated the laws of war -- for example, by deliberately targeting civilians. International law has always held that such people deserve fewer legal protections, much less those of civilian defendants.

HOT TOPIC

• Torture a Likely Focus at TrialStill, it's no exaggeration to say these war tribunals will be the most due-process-minded war tribunals in history. The procedures are nearly identical to those of a court-martial, with small differences for rules on secrecy and evidence. To avoid compromising intelligence sources and methods, and given the national-security interests, some tradeoffs were necessary. What's notable is how fine those distinctions are. Even liberal darlings like the International Criminal Tribunal for Yugoslavia are more severe, allowing prosecutors to pack the pretrial factual record or to have ex parte contact with judges.

By contrast, terror detainees have rights approximating habeas corpus and can challenge their incarceration, including judicial review by the D.C. Circuit Court of Appeals and Supreme Court. Critics yowl about the admissibility of "hearsay," but civilian jurisprudence is loaded with exemptions for second-hand material -- as any first-year law student will attest. The relevant point is that in terror cases it may be necessary to shield sources and tactics, or allow for evidence gathered under battlefield conditions.

Another point of controversy is that defendants may be barred from seeing all the evidence against them. But their government-appointed defense lawyers, with security clearances, can; and in any case, the detainees will be given access to declassified summaries of such evidence.

The most preposterous canard is that the tribunals are tainted because some terrorists were subjected to coercive interrogation techniques while in CIA custody. But a total of three -- KSM being the only one yet charged -- were waterboarded. It was conducted not to extract a confession but in the immediate aftermath of 9/11 when further attacks seemed likely and intelligence about al Qaeda's operations was limited. CIA Director Michael Hayden recently testified that these interrogations saved American lives.

Though allegedly coerced testimony might potentially be admitted under the Military Commissions Act, the Pentagon took the extra step of using "clean teams" to rebuild the cases. Not that it matters: Like KSM, most of the 9/11 conspirators happily boast of their atrocities.

* * *Whether they intend it or not, KSM's victimologists are dupes in his campaign to undermine the antiterror enterprise. They also risk tearing down the firewall between national security and the civilian courts, where Constitutional principles could easily bend after some future attack to the gravity of national self-defense.

The proceedings are likely to be transparent, with only a limited portion closed to observers. It is true that this could become a forum for claims of childhood trauma, or a platform for grievances against the U.S., as with Zacarias Moussaoui; they also could degenerate into a media carnival. But that has more or less already happened. One virtue of public proceedings is to show that the U.S. is not conducting the Star Chambers of liberal caricature. Another is to reveal the ideology that irrigates al Qaeda's violence.

The ultimate purpose of the tribunals is to administer justice. It is a strange worldview that considers such tribunals and the death penalty inappropriate for the murders of 2,972 people in New York, Virginia and Pennsylvania, and hundreds more world-wide. A society that would not tender justice to a human butcher like KSM is not serious about defending itself.

See all of today's editorials and op-eds, plus video commentary, on Opinion Journal.

Counterterrorism officials in the U.S. and the Middle East, who in recent years have shut down several Islamic charities accused of financing terrorist organizations, now are pursuing what they describe as a second constellation of such groups.

Key figures who avoided the initial legal dragnet in 2001 and 2002 have continued to raise funds that help Islamic militants in the Palestinian territories, Iraq and other conflict areas, counterterrorism officials in Washington and the Middle East said in recent interviews. The officials said Islamic fund-raisers have taken donor files and moved from one group to another a step ahead of the authorities, officials said.

• The News: Counterterrorism officials who shut down Islamic charities that they accused of funding terrorist organizations are targeting a second group of charities.• The Background: Officials say Islamic fund-raisers have taken donor files and moved from one group to another, remaining a step ahead of authorities.• The Controversy: Over the last six years, little evidence has emerged directly connecting charities to individual acts of terrorism."Government can come in and close down the charity, but the donor list still exists," said prosecutor Pat Roane, the Justice Department's point man on terrorism financing. "The donor list is gold."

Islamic charities became a major focus after the Sept. 11, 2001, terrorist attacks, when U.S. officials concluded the charities played a large role in sustaining the infrastructure of radical Islamic groups. Using a set of new laws, the U.S. Treasury froze the assets of numerous groups in the U.S. and overseas.

But over the last six years little evidence has emerged directly connecting charities to individual acts of terrorism, and Muslim leaders and civil libertarians have charged that the government is over-reaching in pursuing the charities.

Questions about the government's approach arose particularly after prosecutors failed in some high-profile trials to prove that charities were connected to terrorists or terrorist organizations. The charities' leaders and their supporters say they send money from American Muslims to legitimate social and aid organizations in the Middle East.

One scholar, Ibrahim Warde of the Fletcher School of Law and Diplomacy, argues in a 2007 book, "The Price of Fear," that the connection between charities and terrorism is largely a myth.

Government officials, while acknowledging that charities' role in individual attacks seems to be slight, say evidence from several of the criminal cases have demonstrated direct ties between charities and terrorist groups, including al Qaeda and its affiliates.

Kenneth Wainstein, the Justice Department national-security chief, said in an interview that intelligence reports continue to find that charities are being used by terrorist groups to provide both funds and logistics help, such as with visas and work permits in conflict zones. Mr. Wainstein and other officials say many of an estimated six million Muslims in the U.S. follow the tenets of their faith and give generously to charities that promote Islam and provide welfare to needy Muslims in places like Afghanistan and Iraq, but the funds often are diverted to other purposes in these war zones to underwrite items such as communications, logistics and medicine for groups fighting the U.S. military or U.S. allies.

In the years after Sept. 11, the Justice Department now alleges, fund-raising efforts in the U.S. shifted to at least two existing groups that were missed in the initial sweep: a charity in Boston called Care International, and another in Columbia, Mo., called the Islamic American Relief Agency. Care International's officers were recently convicted of tax fraud in Boston federal court, while backers of the Missouri group are under indictment for similar offenses. In the Care International case, prosecutors presented evidence that the group was an extension of Osama bin Laden's original outpost in the U.S., a Brooklyn-based Islamic organization. But Mr. Warde criticized prosecutors for not charging any of the defendants with terrorism support. The Care International officers are expected to appeal.

A month after the government shut down many top charities in December 2001, Islamic fund-raisers set up a new group in Toledo, Ohio, called Kindhearts, which the Treasury in 2006 shut down and identified in a public statement as "the progeny of Holy Land Foundation and Global Relief Foundation," two defunct charities that the U.S. designated as supporters of terrorism. Two other charities, Kinder USA and Life for Relief and Development, remain under investigation but have denied any ties to terrorism.

Terrorism investigators say Islamic charity fund-raisers are more sophisticated than they originally realized. Khalil Jassemm, the founder of one group under investigation, self-published a 494-page guide to running such groups -- "Islamic Perspective on Charity, a Comprehensive Guide for Running a Muslim Nonprofit In the U.S." -- that walks charity officials through the numerous laws governing such groups. The book was made available by The Investigative Project, a Washington nonprofit that researches terrorism issues.

Mr. Jassemm founded Life for Relief and Development. Terrorism investigators say some of its personnel are supporters of the Islamic Party of Iraq and in 2006 was raided by the FBI in Michigan and by the U.S. military in Iraq. A spokesman for the charity said Mr. Jassemm has left the group and now lives in Jordan. He didn't respond to an email request for a meeting. The group says it isn't affiliated with any political groups in Iraq.

Officials say the moves against the organizations have aroused anger and opposition among many American Muslims and some civil-liberties advocates -- creating what counterterrorism officials acknowledge is a public-relations problem.

For one thing, critics have chided the government for keeping much of its evidence of terrorist connections secret and resorting to nonterrorism charges, such as tax and money-laundering violations, to put the leaders of some charities out of business.

Prosecutors say, though, that they won't abandon tactics that have brought results. "We incapacitate the bad guys," said Justice's Mr. Wainstein. "It might not be the sexiest way of doing it, and if we get criticized, so be it."

One big problem, some front-line prosecutors said, is that intelligence can show signs of terrorism support, but it is difficult to obtain the kind of unambiguous evidence that will stand up in court to prove money ended up with terrorists overseas. "Once it hits a foreign bank, it is gone to us," said one federal prosecutor who asked not to be named.

WASHINGTON, D.C. -- Five years ago, Congress killed an experimental Pentagon antiterrorism program meant to vacuum up electronic data about people in the U.S. to search for suspicious patterns. Opponents called it too broad an intrusion on Americans' privacy, even after the Sept. 11 terrorist attacks.

But the data-sifting effort didn't disappear. The National Security Agency, once confined to foreign surveillance, has been building essentially the same system.

The central role the NSA has come to occupy in domestic intelligence gathering has never been publicly disclosed. But an inquiry reveals that its efforts have evolved to reach more broadly into data about people's communications, travel and finances in the U.S. than the domestic surveillance programs brought to light since the 2001 terrorist attacks.

Congress now is hotly debating domestic spying powers under the main law governing U.S. surveillance aimed at foreign threats. An expansion of those powers expired last month and awaits renewal, which could be voted on in the House of Representatives this week. The biggest point of contention over the law, the Foreign Intelligence Surveillance Act, is whether telecommunications and other companies should be made immune from liability for assisting government surveillance.

Largely missing from the public discussion is the role of the highly secretive NSA in analyzing that data, collected through little-known arrangements that can blur the lines between domestic and foreign intelligence gathering. Supporters say the NSA is serving as a key bulwark against foreign terrorists and that it would be reckless to constrain the agency's mission. The NSA says it is scrupulously following all applicable laws and that it keeps Congress fully informed of its activities.

According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.

The NSA's enterprise involves a cluster of powerful intelligence-gathering programs, all of which sparked civil-liberties complaints when they came to light. They include a Federal Bureau of Investigation program to track telecommunications data once known as Carnivore, now called the Digital Collection System, and a U.S. arrangement with the world's main international banking clearinghouse to track money movements.

The effort also ties into data from an ad-hoc collection of so-called "black programs" whose existence is undisclosed, the current and former officials say. Many of the programs in various agencies began years before the 9/11 attacks but have since been given greater reach. Among them, current and former intelligence officials say, is a longstanding Treasury Department program to collect individual financial data including wire transfers and credit-card transactions.

It isn't clear how many of the different kinds of data are combined and analyzed together in one database by the NSA. An intelligence official said the agency's work links to about a dozen antiterror programs in all.

A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance. And the constitutional question of whether the government can examine such a large array of information without violating an individual's reasonable expectation of privacy "has never really been resolved," said Suzanne Spaulding, a national-security lawyer who has worked for both parties on Capitol Hill.

NSA officials say the agency's own investigations remain focused only on foreign threats, but it's increasingly difficult to distinguish between domestic and international communications in a digital era, so they need to sweep up more information.

The Fourth Amendment

In response to the Sept. 11 attacks, then NSA-chief Gen. Michael Hayden has said he used his authority to expand the NSA's capabilities under a 1981 executive order governing the agency. Another presidential order issued shortly after the attacks, the text of which is classified, opened the door for the NSA to incorporate more domestic data in its searches, one senior intelligence official said.

The NSA "strictly follows laws and regulations designed to preserve every American's privacy rights under the Fourth Amendment to the U.S. Constitution," agency spokeswoman Judith Emmel said in a statement, referring to the protection against unreasonable searches and seizures. The Office of the Director of National Intelligence, which oversees the NSA in conjunction with the Pentagon, added in a statement that intelligence agencies operate "within an extensive legal and policy framework" and inform Congress of their activities "as required by the law." It pointed out that the 9/11 Commission recommended in 2004 that intelligence agencies analyze "all relevant sources of information" and share their databases.

Two former officials familiar with the data-sifting efforts said they work by starting with some sort of lead, like a phone number or Internet address. In partnership with the FBI, the systems then can track all domestic and foreign transactions of people associated with that item -- and then the people who associated with them, and so on, casting a gradually wider net. An intelligence official described more of a rapid-response effect: If a person suspected of terrorist connections is believed to be in a U.S. city -- for instance, Detroit, a community with a high concentration of Muslim Americans -- the government's spy systems may be directed to collect and analyze all electronic communications into and out of the city.

The haul can include records of phone calls, email headers and destinations, data on financial transactions and records of Internet browsing. The system also would collect information about other people, including those in the U.S., who communicated with people in Detroit.

The information doesn't generally include the contents of conversations or emails. But it can give such transactional information as a cellphone's location, whom a person is calling, and what Web sites he or she is visiting. For an email, the data haul can include the identities of the sender and recipient and the subject line, but not the content of the message.

Intelligence agencies have used administrative subpoenas issued by the FBI -- which don't need a judge's signature -- to collect and analyze such data, current and former intelligence officials said. If that data provided "reasonable suspicion" that a person, whether foreign or from the U.S., was linked to al Qaeda, intelligence officers could eavesdrop under the NSA's Terrorist Surveillance Program.

The White House wants to give companies that assist government surveillance immunity from lawsuits alleging an invasion of privacy, but Democrats in Congress have been blocking it. The Terrorist Surveillance Program has spurred 38 lawsuits against companies. Current and former intelligence officials say telecom companies' concern comes chiefly because they are giving the government unlimited access to a copy of the flow of communications, through a network of switches at U.S. telecommunications hubs that duplicate all the data running through it. It isn't clear whether the government or telecom companies control the switches, but companies process some of the data for the NSA, the current and former officials say.

When Congress passed the Patriot Act in the aftermath of the 9/11 attacks, law-enforcement agencies hailed it as a powerful tool to help track down the confederates of Osama bin Laden. No one expected it would end up helping to snag the likes of Eliot Spitzer. The odd connection between the antiterror law and Spitzer's trysts with call girls illustrates how laws enacted for one purpose often end up being used very differently once they're on the books.

The Patriot Act gave the FBI new powers to snoop on suspected terrorists. In the fine print were provisions that gave the Treasury Department authority to demand more information from banks about their customers' financial transactions. Congress wanted to help the Feds identify terrorist money launderers. But Treasury went further. It issued stringent new regulations that required banks themselves to look for unusual transactions (such as odd patterns of cash withdrawals or wire transfers) and submit SARs—Suspicious Activity Reports—to the government. Facing potentially stiff penalties if they didn't comply, banks and other financial institutions installed sophisticated software to detect anomalies among millions of daily transactions. They began ranking the risk levels of their customers—on a scale of zero to 100—based on complex formulas that included the credit rating, assets and profession of the account holder.

Another element of the formulas: whether an account holder was a "politically exposed person." At first focused on potentially crooked foreign officials, the PEP lists expanded to include many U.S. politicians and public officials who were conceivably vulnerable to corruption.

The new scrutiny resulted in an explosion of SARs, from 204,915 in 2001 to 1.23 million last year. The data, stored in an IRS computer in Detroit, are accessible by law-enforcement agencies nationwide. "Terrorism has virtually nothing to do with it," says Peter Djinis, a former top Treasury lawyer. "The vast majority of SARs filed today involve garden-variety forms of white-collar crime." Federal prosecutors around the country routinely scour the SARs for potential leads.

One of those leads led to Spitzer. Last summer New York's North Fork Bank, where Spitzer had an account, filed a SAR about unusual money transfers he had made, say law-enforcement and industry sources who asked not to be identified because of the sensitivity of the probe. One of the sources tells NEWSWEEK that Spitzer wasn't flagged because of his public position. Instead, the governor called attention to himself by asking the bank to transfer money in someone else's name. (A North Fork spokesperson says the bank does not discuss its customers.) The SAR was not itself evidence that Spitzer had committed a crime. But it made the Feds curious enough to follow the money.

This week, the Supreme Court heard arguments concerning whether U.S. officials in Iraq can turn over American nationals, held in that country by Coalition Forces, to the Iraqi government for trial and punishment.

The men involved, Shawqi Ahmad Omar (a dual U.S./Iraqi national) and Mohammad Munaf (a dual U.S./Jordanian national), traveled voluntarily to Iraq and are accused of criminal offenses there – kidnapping for ransom (Mr. Munaf) and assisting Iraqi insurgents, also in connection with a kidnapping for ransom scheme (Mr. Omar). Both men have demanded intervention by the U.S. federal courts – through habeas corpus petitions – and seek judicial orders forbidding their transfer to Iraqi officials and other forms of cooperation between the U.S. and Iraqi authorities. This judicial relief would manifest disdain for Iraqi sovereignty and violate settled law.

Every country has the legal right to punish criminal offenses that occur on its territory. This is a fundamental attribute of sovereignty, and is fully recognized by the U.N. Charter. When Americans go overseas, they are subject to this rule – as are foreign nationals who visit the U.S. Diplomats enjoy internationally recognized immunities from local jurisdiction, and military personnel are generally covered by status-of-forces agreements which regulate application the host country's laws.

These exceptions to the general rule are, in fact, broader under Iraqi law – exempting both non-Iraqi military personnel and certain civilian security professionals.

But neither Mr. Omar nor Mr. Munaf enjoy any of these immunities. They are private citizens who claim U.S. government protection, and access to the federal courts, based upon their detention in Coalition facilities maintained, in part at least, by American officials. The Supreme Court has made clear that Americans overseas – even when held formally in U.S. custody – can lawfully be transferred to local authorities for criminal trial. The leading case is Wilson v. Girard (1957), in which the Supreme Court rejected an American soldier's efforts to avoid transfer to Japanese officials to face criminal charges for recklessly causing the death of a Japanese woman.

A great deal is at stake here. Iraqis are proud and, despite all of the American blood and treasure spent in Iraq, many resent the legal immunity that has been accorded to U.S. personnel and contractors. They resent even more when this immunity is broadened to include individuals who arrive as private travelers and then engage in criminal conduct on Iraqi soil.

Add in such episodes as a December 2006 escape from the Green Zone by the former Iraqi Electricity Minister Ayham al Samarrai (who was awaiting sentencing on corruption charges and is now rumored to be living in the U.S.), and the repeated snubbing of Iraqi government delegations at various international gatherings, and Iraqis see a concerted campaign to diminish their sovereignty.

The government has sought to convince the Court that it does not have jurisdiction even to consider the habeas petitions filed by Messrs. Omar and Munaf, arguing that they are held under the Coalition's, and not American, authority. A number of Justices posed questions this week evincing skepticism about this distinction. But they also appeared skeptical of the petitioners' claims that they would be entitled to more than simple release from custody – the normal relief granted in a successful habeas corpus action – and that the U.S. should be required to protect them from Iraqi government officials.

Messrs. Omar and Munaf argue that the Iraqi judicial system is fundamentally flawed and that they are likely to be tortured if recaptured by local officials. But the only alternative to release would require the U.S. to grant them "asylum" from Iraqi justice on Iraqi soil or to spirit them out of the country. Both courses of action would clearly violate Iraq's sovereignty and would risk a confrontation between the U.S. and the Iraqi government.

In addition, such orders would exceed the proper, constitutional bounds of judicial authority by directing the president how to manage American-Iraqi relations at a time and place where the U.S. military operates alongside the Iraqi forces in an ongoing armed conflict.

The choice before the Court is clear. It should respect international law and recognize Iraq's sovereign right to try and punish criminal defendants within its own territory. The U.S. has chosen not to seek (as a diplomatic matter) special treatment for these individuals because of their American citizenship, a decision properly within the executive branch's discretion. Even if the Court concludes that it has jurisdiction to consider the habeas petitions, it should reject them and let Messrs. Munaf and Omar have their day in the Iraqi courts.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.

The War on Terror Is Not a CrimeBy DAVID B. RIVKIN JR. and LEE A. CASEYApril 25, 2008

Lynching lawyers, as Shakespeare once suggested, has never appealed much to the legal profession itself – literally or figuratively. But an exception apparently will be made for a group of attorneys who advised President Bush and his national security staff in the aftermath of 9/11. They've been subject to an increasingly determined campaign of public obloquy by law professors, activist lawyers and pundits.

Their legal competence and ethics have been questioned. Suggestions have even been made that they can and should be held criminally responsible for "war crimes," because their legal advice supposedly led to detainee abuses at Abu Ghraib and elsewhere.

The targets of this witch hunt include some of the country's finest legal minds – such as law Prof. John Yoo of the University of California at Berkeley, Judge Jay Bybee of the Ninth Circuit Court of Appeals, and William J. (Jim) Haynes II, former Pentagon general counsel. Others frequently mentioned include former White House Counsel Harriet Miers, former Attorney General Alberto Gonzales, and former Undersecretary of Defense Douglas Feith.

Many positions taken by these attorneys, laying the fundamental legal architecture of the war on terror, outrage international activists and legal specialists. Nevertheless, in a series of cases beginning with Hamdi v. Rumsfeld (2004), the U.S. Supreme Court has upheld many of their key positions: that the country is engaged in an armed conflict; that captured enemy combatants can be detained without criminal trial during these hostilities; and that (when the time comes) they may be punished through the military, rather than the civilian, justice system.

The Court has also required that detainees be given an administrative hearing to challenge their enemy-combatant classification, ruled that Congress (not the president alone) must establish any military commission system, and made clear that it will in the future exercise some level of judicial scrutiny over the treatment of detainees held at Guantanamo Bay – although the extent of this role is still being litigated. Overall, the administration has won the critical points necessary to continue the war against al Qaeda.

Most controversial, of course, was the Bush administration's insistence that the Geneva Conventions have limited, if any, application to al Qaeda and its allies (who themselves reject the "Western" concepts behind those treaties); and the administration's authorization of aggressive interrogation methods, including, in at least three cases, waterboarding or simulated drowning.

Several legal memoranda, particularly 2002 and 2003 opinions written by Mr. Yoo as deputy assistant attorney general for the Office of Legal Counsel, considered whether such methods can lawfully be used. These memoranda, some of which remain classified, explore the limits imposed on the United States by statute, treaties, and customary international law. The goal clearly was to find a legal means to give U.S. interrogators the maximum flexibility, while defining the point at which lawful interrogation ended and unlawful torture began.

Behind this inquiry is a stark fact. In this war on terror, the U.S. must not only attack and defeat enemy forces. It must also anticipate and prevent their deliberate attacks on its civilian population – al Qaeda's preferred target. International law gives the civilian population an indisputable right to that protection.

Lawyers can and do disagree over the administration's conclusions. However, it's now being claimed that the administration's legal advisers can be held responsible for detainee abuses.

This is madness. The lawyers were not in any chain of command, and had no theoretical or practical authority to direct the actions of anyone who engaged in abusive conduct. Those who mouth this argument are engaged in a kind of free association which, if applied across the board, would make legal counsel infinitely culpable.

In truth, the critics' fundamental complaint is that the Bush administration's lawyers measured international law against the U.S. Constitution and domestic statutes. They interpreted the Geneva Conventions, the U.N. Convention forbidding torture, and customary international law, in ways that were often at odds with the prevailing view of international law professors and various activist groups. In doing so, however, they did no more than assert the right of this nation – as is the right of any sovereign nation – to interpret its own international obligations.

But that right is exactly what is denied by many international lawyers inside and outside the academy.

To the extent that international law can be made, it is made through actual state practice – whether in the form of custom, or in the manner states implement treaty obligations. In the areas relevant to the war on terror, there is precious little state practice against the U.S. position, but a very great deal of academic orthodoxy.

For more than 40 years, as part of the post World War II decolonization process, a legal orthodoxy has arisen that supports limiting the ability of nations to use robust armed force against irregular or guerilla fighters. It has also attempted to privilege such guerillas with the rights traditionally reserved to sovereign states. The U.S. has always been skeptical of these notions, and at critical points has flatly refused to be bound by these new rules. Most especially, it refused to join the 1977 Protocol I Additional to the Geneva Conventions, involving the treatment of guerillas, from which many of the "norms" the U.S. has supposedly violated, are drawn.

The Bush administration acted on this skepticism – insisting on the right of a sovereign nation to determine for itself what international law means. This is at bottom the sin for which its legal advisers will never be forgiven. To the extent they can be punished – or at least harassed – perhaps their successors in government office will be deterred from again challenging the prevailing view, even at the cost of the national interest.

That is why these administration attorneys have become the particular subjects of attack.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush, and were members of the United Nations Subcommission on the Promotion and Protection of Human Rights from 2004-2007.

"A Kuwaiti man released from the U.S. prison in Guantanamo Bay in 2005 has carried out a suicide bombing in Iraq, his cousin told Al Arabiya television on Thursday," Reuters reports from Dubai:

A friend of Abdullah Saleh al-Ajmi in Iraq informed his family that Abdullah carried out the attack in Mosul, his cousin Salem told the Dubai-based television channel."We were shocked by the painful news we received this afternoon . . . through a call from one of the friend's of martyr Abdullah in Iraq," said Salem al-Ajmi in a telephone interview aired by Arabiya.He did not say when the suicide bombing happened.

'Captive 220'May 9, 2008; Page A16It's a fair bet that no high-powered American law firm will lend a caring hand to the relatives of the seven Iraqis murdered last month by a suicide bomber named Abdullah Salih Al Ajmi and two accomplices. That's too bad, seeing as how Ajmi was himself a beneficiary of some of that high-powered legal help.

Ajmi is a Kuwaiti who was 29 when he blew himself up in the northern city of Mosul in April. But before that he had spent more than three years as an enemy combatant at Guantanamo, where he was known as "Captive 220." He was taken prisoner at Tora Bora, Afghanistan, after the fall of the Taliban, in whose service he had reportedly spent eight months. While in detention, he told interrogators that his intention was "to kill as many Americans" as he possibly could.

In April 2002, a group of Kuwaiti families retained the law firm of Shearman & Sterling to represent the Kuwaitis held at Guantanamo, including Ajmi. (An attorney at Shearman tells us the firm donated its fees to charity.) Ajmi was one of 12 Kuwaiti petitioners in whose favor the U.S. Supreme Court ruled in 2004 in Rasul v. Bush, which held that the detainees were entitled to a habeas corpus hearing.

At the time, we wrote that Rasul had "opened the door to a flood of litigation. . . . This pretty much guarantees that the 600 or so Guantanamo detainees will bring 600 or so habeas corpus cases – perhaps in 600 or so different courtrooms, with 600 or so different judges demanding 600 or so different standards of what evidence constitutes a threat to the United States."

The Pentagon seems to have understood this point only too well, because in November 2005 it released Ajmi into Kuwaiti custody before he could have his hearing. A Kuwaiti court later acquitted Ajmi of terrorism charges, and last month the Kuwaiti government issued Ajmi and his accomplices with passports, which they used to travel to Mosul via Syria.

Ajmi's story is hardly unique. Some 500 detainees have been released from Guantanamo over the years, mostly into foreign custody. Another 65 of the remaining 270 detainees are also slated to go. Yet of all the prisoners released, the Pentagon is confident that only 38 pose no security threat. So much for the notion that the Gitmo detainees consist mostly of wrong-time, wrong-place innocents caught up in an American maw.

The Defense Intelligence Agency reported on May 1 that at least 36 former Guantanamo inmates have "returned to the fight." They include Maulavi Abdul Ghaffar, who was released after eight months in Gitmo and later became the Taliban's regional commander in Uruzgan and Helmand provinces. He was killed by Afghan security forces in September 2004.

Another former detainee, Abdullah Mahsud, was released from Guantanamo in March 2004. He later kidnapped two Chinese engineers in Pakistan (one of whom was shot during a rescue operation). In July 2007 he blew himself up as Pakistani police sought to apprehend him.

Ajmi's case now brings the DIA number to 37. It's worth noting that these are only the known cases. It is worth noting, too, that people like Ajmi were among those the Defense Department thought it would be relatively safe to free, or at least not worth the hassle and expense of the litigation brought about by cases like Rasul.

All this should give some pause to those – John McCain, Barack Obama and Hillary Clinton among them – calling for closing Guantanamo. The prison is helping to save lives by keeping dangerous men from returning to the fight against our soldiers.

Stranger still are those who argue that people like Ajmi were somehow a creation of Guantanamo. They might want to have a chat with a detainee named Mohammed Ismail, who told the press after his release from Gitmo that his American captors "were very nice to me, giving me English lessons." Ismail was recaptured four months later while attacking an American military position in Kandahar.

Our liberal friends argue that the detention facilities at Guantanamo Bay have hurt America's image in the world, and that's true. Then again, Ajmi and others show that there are also lethal consequences to the legal war that liberals are waging on the war on terror. Liberals claim they are only fighting for "due process," but they are doing so for foreign enemies who want to kill innocents and don't deserve such protections. Mosul is one result.

Until the left starts seeing their own friends and families die at the hands of these savages, they'll continue to wage their war to undercut the war against the global jihad. Of course, after suffering terrorism firsthand, i'm sure they'll try to sue the USG, and law enforcement for failing to protect them.

The Lawyers WarMay 20, 2008; Page A22The war on terror is easily the most litigated war in history, and on the evidence so far the lawyers are winning. They may yet succeed in killing military commissions, despite their long U.S. history and a law duly passed by Congress and signed by the President.

The latest legal battle concerns the Pentagon's attempt to try the perpetrators of 9/11. You'd think this would be easy compared, say, to trying the eight Nazis who secretly landed on Long Island and Florida in June 1942. Those Nazis didn't kill any Americans. Yet they were captured within days and convicted by military commissions established by FDR; most were sentenced to hang within two months. The Supreme Court validated the action in Quirin. But today, nearly seven years after 9/11, the U.S. still hasn't tried the conspirators who planned the deaths of 3,000 Americans.

Khalid Sheikh Mohammed and five others have been referred for trial at Guantanamo Bay under the 2006 Military Commissions Act. Yet a guerrilla campaign by military attorneys and human-rights lawyers is throwing up obstacles at every turn. The latest is an attempt to discredit Brigadier General Thomas Hartmann, the legal adviser to the commissions who has been given the thankless task of getting the trials underway.

General Hartmann was disqualified this month from advising in the case of one terror defendant on the preposterous grounds that he had exerted "undue influence." How so? It seems he had told military prosecutors that they should get better training, and that the cases to try first should be the "sexy" ones that might "capture the imagination of the American people." Such as those involving the deaths of 3,000 Americans.

In his bizarre decision, Military Judge Keith Allred conceded this wouldn't disqualify the legal adviser in a normal military court-martial. But it was enough in this case because Congress wanted the military commissions to avoid even the "appearance of unlawful command influence." Congress didn't define such unlawful influence, however, so Judge Allred defined it himself. And his elastic definition included the fact that the antiwar Harper's magazine had published a screed against military commissions and General Hartmann. Seriously.

Keep in mind that the trial judge in each case, not General Hartmann, still makes the decision about admitting evidence and other trial conduct. All General Hartmann has been doing is providing some legal direction to the prosecutors trying the case, rather like a district attorney or U.S. Attorney. The logic of Judge Allred's ruling is that General Hartmann must defer more to prosecutors in al Qaeda cases than he would in courts-martial against American soldiers.

Meanwhile, the press has distorted another recent Guantanamo decision. Susan Crawford, the former civilian judge who is supervising the military tribunals, dismissed the capital charges last week against one of the six al Qaeda 9/11 conspirators. Mohammed al-Qahtani was allegedly going to be the 20th hijacker on 9/11 had he been admitted to the U.S. He was captured in late 2001.

Echoing defense attorneys, the press is calling Judge Crawford's decision a setback for the tribunals and is reporting the now-routine claim he was tortured under interrogation. But those attorneys haven't seen Judge Crawford's ruling, which is under seal. We're told the judge separated al-Qahtani on grounds that he was less central to the conspiracy than were the likes of KSM, and that being tried with the five others might have prejudiced the death-penalty case against him. In other words, her ruling shows how independent Judge Crawford and the tribunals are from Pentagon pressure.

The larger game here, among many lawyers and most of the press, is to give the impression that military commissions are unworkable. The critics want to delay the trials long enough to push them into the next Administration, which they hope will then abandon commissions. Their ultimate goal is to get terrorists tried like any other defendant in civilian courts or regular courts-martial – fully aware of how daunting the chance of convictions would be.

The critics are especially worried that KSM and friends might go on trial before the November election, because their testimony is likely to celebrate their murders and remind the world how much they want to kill Americans. They deserve to be tried as "enemy combatants" under military tribunals precisely because they have violated the rules of war. The case against them also involves classified intelligence that can't be heard in open court.

Congress and the executive branch have decided that military commissions are necessary to defend the country, and the Supreme Court decided in Hamdan in 2006 that they are legal when properly established by both branches. The obligation of military lawyers is to get on with the trials, and see that justice is done to those who killed innocent Americans.

See all of today's editorials and op-eds, plus video commentary, on Opinion Journal.

A friend who was involved with this case sent me the following:================

Member of Afghan Taliban Convicted in U.S. Court on Narco-Terrorism and Drug Charges MAY 20 -- WASHINGTON – A member of an Afghan Taliban cell was convicted today by a jury in U.S. District Court for the District of Columbia on charges of narcotics distribution and narco-terrorism, Assistant Attorney General for the Criminal Division Alice S. Fisher announced. The conviction represents the first time a defendant has been convicted in U.S. federal court of narco-terrorism since the statute was enacted in March 2006. Khan Mohammed, from the Nangarhar Province of Afghanistan, was investigated by the Drug Enforcement Administration (DEA) for weapons and narcotics offenses. The investigation revealed that Mohammed was part of a Taliban plan to obtain rockets to attack U.S. military and Afghan civilian personnel at Jalalabad Airfield in Jalalabad, Afghanistan. A cooperating witness working with the DEA met with Mohammed on several occasions to plan the rocket attack. Evidence presented at trial established that Mohammed had previously engaged in similar rocket attacks against other Afghan targets. During the investigation, Mohammed also sold opium and heroin that he knew was intended for importation into the United States.“The Department of Justice will continue to use every available legal tool to bring to justice those who help fund terrorist activities by trafficking in illegal drugs,” said Assistant Attorney General Alice S. Fisher. “I would like to thank the DEA, our law enforcement partners in Afghanistan and the federal prosecutors for their hard work on this case.” “As an enemy of the United States, Khan Mohammed intended to ship heroin to the United States and use profits from that trade to assist the Taliban,” said DEA Acting Administrator Michele M. Leonhart. “ A dangerous double threat, Kahn Mohammed purchased rockets to attack American and coalition soldiers who were risking their lives to stabilize Afghanistan. The conviction of Kahn Mohammed puts an end to this source of poison and violence.” A grand jury first returned an indictment against Mohammed on Dec. 13, 2006, charging him with distributing opium and heroin, knowing that it would be imported into the United States. A superseding indictment returned on Jan. 23, 2008, also charged Mohammed with engaging in drug trafficking knowing or intending to provide something of pecuniary value to a terrorist or terrorist organization. Mohammed was brought to the United States on Nov. 5, 2007. Mohammed faces a mandatory minimum sentence of 20 years and a maximum of life in prison. A sentencing hearing is scheduled before the Honorable Colleen Kollar-Kotelly on Oct. 10, 2008. The case was prosecuted by Deputy Chief of Litigation Julius Rothstein, Trial Attorney Matthew Stiglitz and paralegal Arianne Tice of the Criminal Division’s Narcotic and Dangerous Drug Section. The investigation was led by the DEA’s Kabul Country Office and DEA’s FAST team in Afghanistan with support from DEA’s Special Operations Division in the United States and in close cooperation with Afghan law enforcement.

In the wake of the September 11, 2001, attacks, America has tried to understand how she could have been so blind. Countless books, articles, documentaries--in addition to the 9/11 Commission's high-profile investigation during a hotly contested presidential election year--have all attempted to answer one central question: How could a small band of al Qaeda terrorists execute the greatest attack on American soil since Pearl Harbor?

For Andrew McCarthy, a former federal prosecutor, the answer begins with a series of fateful events in the early 1990s. And in his exceptional new book, he documents a series of missteps that led America to consistently misjudge both the scale and the nature of the terrorist threat. McCarthy exposes a fundamental flaw in the government's counterterrorism strategy prior to September 11. While our enemies were waging a war, we were prosecuting them as mere criminals. Much of the burden of dealing with an imminent national security threat was, therefore, placed on the criminal justice system. But as McCarthy demonstrates in meticulous fashion, the courts are a poor substitute for the real battlefield, so much so that our terrorist enemies were consistently able to outflank us.

McCarthy's story is centered on the trial of Sheikh Omar Abdel Rahman ("The Blind Sheikh") and 11 of his followers. McCarthy led the prosecution of this dirty dozen in 1995. In landmark convictions, Rahman and his cohort were found guilty of participating in a broad conspiracy to attack Americans, including the 1993 World Trade Center bombing and a follow-on plot to destroy landmarks in the New York area just months later.

It is no exaggeration to say that the convictions stand out as a singular achievement in counterterrorism history. At the time, the law was so ill-equipped to handle such a case that McCarthy and his team had to charge the sheikh with violating a Civil War-era statute prohibiting seditious conspiracy! The sheikh slyly avoided discussing precise tactics, preferring instead to lend his voice to theological justifications for violence. His blessing was crucial for the terrorists to move forward, but America's laws were not written with someone like Rahman, or his type of violence, in mind.

In McCarthy's words, "The legal system circa 1993 was woefully unprepared for radical Islam." Therefore, pinning these events on Rahman--who clearly, at the very least, inspired them--was no small feat.

McCarthy, however, does not rest on his laurels. In fact, one senses that if it were up to him, the trial of Rahman and his cohort would never have happened. The terror network centered on Rahman should have been years earlier--or, better yet, never allowed to develop on American soil in the first place. And in the aftermath of the events of 1993, the criminal justice system should not have been our frontline defense.

As McCarthy writes, "In the eight years between the World Trade Center's bombing and its destruction, the high-profile court cases that constituted the Clinton administration's counter-terrorism strategy resulted in the convictions of exactly twenty-nine terrorists." By way of contrast, consider that the former National Security Council official Richard Clarke has stated that "perhaps over 10,000 terrorists" were trained "at the camps in Afghanistan" alone. Clearly, America was not on a war footing.

From McCarthy's perspective, the missteps began in 1989 when the FBI prematurely abandoned its investigation into a group of jihadists conducting firearm drills in Calverton, Long Island. One of those jihadists, El Sayyid Nosair, went on to murder an extremist Jewish leader named Rabbi Meir Kahane on November 5, 1990. Despite overwhelming evidence of his guilt, Nosair was acquitted of Kahane's murder and convicted of only lesser charges.

This miscarriage of justice, McCarthy explains, was further compounded by an incompetent investigation. Nosair left behind a treasure trove of information, including handwritten notes, connecting him to a broader terror network then operating in New York and New Jersey. But authorities failed to analyze much of it. Instead, Nosair was branded a "lone gunman" and the 40-plus boxes of evidence seized with Nosair were ignored, thereby allowing his fellow conspirators to initially escape scrutiny.

Nosair was no lone wolf, as McCarthy makes clear, but one of Sheikh Rahman's gaggle of followers. And together they had more grandiose designs. For example, in one of his initially overlooked notebooks, Nosair expressed his desire to destroy America's "high world buildings which they are proud of and their statues which they endear and the buildings in which gather their heads [their leaders]."

On February 26, 1993, more than two years after Kahane's murder, a powerful truck bomb was detonated underneath the World Trade Center. Seven people were killed, including an unborn child, but the damage could have been much worse: The terrorists responsible, some of whom had consulted Nosair in prison and attended the firearm drills in Long Island, wanted to kill thousands.

Nor did Rahman's jihadists stop there. They soon began plotting yet another, more devastating, attack. This time they wanted to simultaneously destroy several landmarks in the New York area, including the United Nations building and the Holland and Lincoln tunnels. That plot never got off the ground because of a well-placed FBI informant named Emad Salem. Rahman's followers thought the Egyptian Salem was a committed jihadist who could provide them with invaluable explosives expertise. Instead, Salem led them down a path of misdirection: The plotters mixed the chemicals for a bomb in a Queens warehouse under Salem's (and the FBI's) watchful eye. Once a critical mass of evidence was collected, Rahman and his minions were rounded up, thereby short-circuiting their bomb making, and convicted as a result of McCarthy's relentless prosecution.

But as McCarthy reveals, even this success has a troublesome back story. The FBI first recruited Salem to serve as a mole prior to the World Trade Center bombing. Skittish agents, who mishandled Salem from the first, alternated between fears that they could not corroborate his testimony and that Salem's fellow plotters would be successful despite Salem's meddling. In the latter case, the FBI would have known about a plot that it failed to stop--a surefire recipe for public scorn. The bureau, therefore, decided to end Salem's employment several months before the World Trade Center bomb was detonated.

The failure to properly vet Nosair's documents, or to continue using Salem's services in the months leading up to the World Trade Center bombing, is bad enough. What's worse is that Sheikh Rahman was allowed to freely operate and inspire these terrorist acts from American soil in the early 1990s. At that point, for more than a decade, Rahman had provided the religious justification for numerous terrorist plots in Egypt, including the assassination of Anwar Sadat. He was the spiritual head of Egypt's two main terrorist groups, both of which were instrumental in aiding al Qaeda's rise. And he was a player in the jihad against the Soviet Union in Afghanistan, where he made numerous allies, including Osama bin Laden himself.

Yet, despite his dark past, Rahman was repeatedly granted U.S. visas. It is ironic, then, that while the sheikh could not safely preach in Cairo, he could preach in mosques in Brooklyn and Jersey City.

Had McCarthy stopped at telling the story of the many tactical failures that allowed Rahman's terrorists to menace America in the early 1990s, Willful Blindness would have been an invaluable addition to the literature of 9/11. But he takes his argument a step further, showing how these tactical failures were merely symptoms of a larger strategic failure to comprehend the nature of our terrorist enemies. In the process, McCarthy has given us one of the most important books on jihadist terrorism.

The strategic failure McCarthy exposes is ongoing, and extends even to something as basic as naming the enemy. Just as Willful Blindness was released, the State Department and other agencies published an edict banning the use of the word "jihadist" (as well as similar terms) from the government's lexicon. The thinking is that the terrorists like to call themselves "jihadists," thereby appropriating an Islamic term which can have far more benevolent meanings, such as the struggle for spiritual betterment or simply to do good.

It is true that, in some Islamic traditions, "jihad" has been endowed with such inoffensive meanings. But as McCarthy rightly argues, "jihad" has far more frequently been used to connote violent campaigns against infidels since the earliest days of Islam. When Sheikh Rahman called on his followers to wage "jihad," they knew that their master did not mean for them to become absorbed in prayer.

Moreover, Washington is apparently too obtuse to notice that Saddam Hussein, al Qaeda's terrorists, Tehran's mullahs, and Saudi Arabia's Wahhabi clerics have called for a militant brand of jihad persistently over the past several decades. All of these parties know how their words will be interpreted by the Muslim masses, and no fiat from the Washington bureaucracy will undo this widely accepted meaning.

Not only does Washington have a hard time properly naming our jihadist enemies, it still fails to understand that terrorist-sponsoring regimes have long backed them. Here, McCarthy has been at the forefront of explaining how jihadist terrorism is frequently, but not exclusively, a tool of hostile regimes: Writing in these pages in 1998 ("The Sudan Connection"), he explored the many ties between the 1993 plotters and the Sudanese regime then led by an Islamic radical named Hassan al-Turabi. Indeed, Turabi and Rahman were longtime friends and allies. McCarthy returns to this aspect of the story in Willful Blindness to show how Sudan's U.N. delegation provided material support to Rahman's terrorists as they plotted to blow up New York's landmarks. (The Clinton administration even expelled two Sudanese delegates because of their involvement.)

Sudan's sponsorship went far beyond Rahman's goons. In the early 1990s Turabi forged a broad terrorist coalition that included Osama bin Laden's core group of followers, all of al Qaeda's affiliates, and a number of other organizations. Turabi envisioned bringing all of these parties together in one grand anti-American terrorist coalition. And he received the support of the two leading state sponsors of terrorism: Saddam Hussein's Iraq and the mullahs' Iran. Out of this witch's brew of state and nonstate actors grew the network that we commonly call "al Qaeda."

It is beyond my scope here to summarize all of the evidence that supports this thesis, but suffice it to say that McCarthy is exactly right when he asserts,

It is not difficult to find some current or former intelligence official ready and willing to opine that Sunnis [such as Rahman and bin Laden] would never cooperate with secularists or Shiites--overlooking abundant evidence of the Ba'athist Saddam Hussein coddling Sunni jihadists and a years-long history of collaboration between al Qaeda and Shiite Hezbollah.

McCarthy argues that, more than a decade after the Blind Sheikh was convicted of inspiring terrorism on American soil, America remains largely blind. Even the September 11 attacks did not fully awaken our nation, or its leaders, from their slumber. An implacable hate drives our enemies to never-ending violence. For them, we are the "other," infidels who deserve to be slaughtered as victims of a religious jihad, and there are many who are willing to support their war on us.

Thomas Joscelyn is a terrorism researcher, writer, and economist living in New York. He is the author, most recently, of Iran's Proxy War Against America (Claremont Institute).

I notice a lot of people in the Hotair response posts expressing anger at the SCOTUS. SCOTUS didn't write/vote for/pass the flawed legislation. Why don't we pass the blame on the administration/congress for blowing it in the first place?

The Court held 5-4, in an opinion by Justice Kennedy, that the petitioners at Gitmo have a constitutional right to petition for habeas corpus and that the DTA/MCA process of D.C. Circuit review from CSRT decisions is not an adequate alternative to habeas. Thus, the petitioners will be able to have habeas petitions considered in district court.

That's very, very big news. But as far as I can tell just yet, the court did not reach the two even more important questions:

1. Whether the Constitution applies to detainees held outside Gitmo; and

2. What the substantive standard for detention is: "It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined."

At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:

It does not speak to whether Gitmo should be closed (although it basically undermines the administration's principal reason for using Gitmo in the first place, which was to keep the courts from reviewing the legality of the executive's conduct).

Nor does it affect, in any dramatic sense, possible military commission trials—with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.

Also:

There’s much fulminating in the dissents about the court usurping the judgment of the political branches, accompanied with the contention (particularly forcefully asserted in Scalia's dissent) that the court’s recognition of habeas rights creates a grave security threat to the nation. But it’s worth recalling one basic fact about this whole litigation: The government of the United States (neither the president nor the Congress) has never argued that the writ of habeas corpus should actually be suspended, something the Constitution permits so long as the constitutional standard for doing so is met. As the Constitution says, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Instead, the government has argued only that habeas does not apply to these detainees because of who and where they are and that, even if habeas does apply, the current statutes provide an adequate substitute for it. The court, of course, has now rejected both of those arguments. But if, in the view of the political branches, the public safety really precludes the modest increment of additional process that constitutional habeas now requires in the eyes of the court, nothing prevents the political branches from arguing that the writ should actually be suspended and then passing legislation to suspend it.

I find this line interesting:That the political branches have not to this point seen fit to do so—and that there is not and has not yet been the political support in Congress for such a suspension (putting aside the separate question whether the court would conclude that such a statutory suspension meets the constitutional requirements for suspension)—goes some distance in my view in undermining the contention that the court has somehow usurped the power of the political branches to protect the public safety.

All we now know is that the political branches have consistently avoided claiming a power to suspend, concluding instead, wrongly, that habeas did not apply to these detainees and that the newly constructed process for reviewing their detentions would be enough to satsify the constitutional guarantee of habeas.

And:

While there's much, much more to be said on the Supreme Court's blockbuster decision today in Boumediene, the not-quite-companion case involving U.S. citizens held by the Americans in Iraq also came down today - and the news there is hardly pro-detainee.

In a unanimous decision, the Court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of Munaf and Omar (the U.S.-citizen detainees), Munaf and Omar would lose on the merits of their habeas claims - and there's therefore no justification for blocking their transfer to the Iraqi authorities for criminal prosecution.

The detainees' key claim was that they were likely to face torture if transferred to the Iraqis for prosecution. The Court concludes that this claim is "of concern," but that it is primarily up to Congress and the Executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the Court decides it is in no position to challenge that determination.

Souter, Ginsburg and Breyer concur separately in an attempt to limit the scope of the decision - emphasizing that the Court is reserving judgment on whether the outcome would be the same in the "extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway." But given the briefing the Court had before it in this case, including this amicus brief detailing all the reasons why torture was likely in this case, it's a little hard to imagine just what kind of exceptional circumstances they have in mind. Among other things, the same State Department had said in its most recent country report that Iraqi jails have "significant human rights problems," including "torture and other cruel, inhuman, or degrading punishment" and "[a]busive interrogation practices" including "rape, torture and abuse, sometimes leading to death."

I'm not sure which is more remarkable about the decision - the fact that it was unanimous or the fact that the Court decided to reach the merits of the habeas claims that the men were being held in violation of their rights under U.S. law. I'll say it was the decision to reach out and decide the merits - of a piece, one might note, with Justice Kennedy's paean to the role of the federal courts in such matters in Boumediene itself: "Because our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury." Read: We've been holding back. We're no longer so inclined.

"The Nation will live to regret what the Court had done today," Justice Antonin Scalia writes at the end of his dissent in Boumediene v. Bush, the case in which a bare majority of the Supreme Court, for the first time ever, extended rights under the U.S. constitution to enemy combatants who have never set foot on U.S. soil.

It's worth noting that the nation has lived to regret things the court has done in earlier wars. In Schenck v. U.S. (1919), the court upheld the conviction of a Socialist Party leader for distributing an anticonscription flier during World War I--material that would unquestionably be protected by the First Amendment under Brandenburg v. Ohio (1969). In Korematsu v. U.S. (1944), the court held that the government had the authority to ban Japanese-Americans from certain areas of California, simply on the ground that their ethnic heritage rendered their loyalty suspect. Korematsu has never been overturned, but there is no doubt that it would be in the vanishingly unlikely event that the question ever came up again.

This war was different. Almost immediately after the 9/11 attacks, we began hearing dire warnings about threats to civil liberties. Five members of the high court seem to have internalized these warnings. As Justice Anthony Kennedy put it in his majority opinion today, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy and his colleagues seemed determined to err on the side of an expansive interpretation of constitutional rights.

And err they did. As Justice Scalia writes:

[Today's decision] will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today.In establishing the detention facility at Guantanamo Bay, President Bush relied on a Supreme Court precedent of more than a half century's standing, Johnson v. Eisentrager (1950), which held that nonresident alien enemy combatants had no right to habeas corpus. As Scalia explains:

Had the law been otherwise, the military surely would not have transported prisoners [to Guantanamo], but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.This points to a key limitation in today's ruling. The majority distinguished Guantanamo from the facility at issue in Eisentrager--a U.S.-administered prison in occupied Germany--on the ground that although the Guantanamo Bay Naval Base is technically on Cuban territory, America exercises "complete jurisdiction and control" over it. Thus, detainees have constitutional rights pursuant to today's ruling only if they are held at Guantanamo.

What does Boumediene mean in practice? Almost all Guantanamo detainees already have lawyers and have petitioned for habeas corpus. Those cases will go forward in the Washington, D.C., federal trial court. The judges there will have to settle on a standard of proof, and to rule on such tricky questions as how much classified material the government is obliged to provide to terrorists and their lawyers. Since the military's existing procedures are already overly lenient--Scalia lists several cases of released detainees showing up on the battlefield--it seems unlikely that many detainees will end up winning release.

Both Barack Obama and John McCain have said they want to close down Guantanamo, and this ruling makes that outcome more likely. There is little advantage to the U.S. in sending enemy combatants to a facility where they will immediately be able to lawyer up, and indeed, Guantanamo has admitted few new detainees in the past several years. A notable exception occurred in 2006, when President Bush transferred Khalid Sheikh Mohammad and a dozen or so other "high value" detainees there--a dramatic action that helped galvanize Congress to pass the Detainee Treatment Act This turns out to have been a mistake. KSM & Co. now have "constitutional rights." Had they been kept where they were, wherever that was, this would not be the case.

It's possible that Scalia is wrong when he predicts more Americans will die as a result of this ruling. It may be that al Qaeda is a weak enough enemy that America can vanquish it even with the Supreme Court tying one hand behind our back. Anyway, keeping future detainees away from Guantanamo should prevent them from coming within the reach of the justices' pettifogging.

Perhaps decades from now we will learn that detainees ended up being abused in some far-off place because the government closed Guantanamo in response to judicial meddling. Even those who support what the court did today may live to regret it.

How the Jihadi Propaganda Machine Will Win the Guantanamo TrialsBy Walid Phares

Jihadism in the 21st century has plans for all types of situations, including Mujahada (Jihadi activity) in a courtroom when needed.

This is now what the world will witness during the trials of the al Qaeda detainees in Guantanamo, Cuba. Both the inmates on the inside and the Jihadi-mates on the outside were waiting for this moment to strike, politically and psychologically, using the media as their weapon. To the well-trained and -indoctrinated five standing trial, the objective is not to gain as many rights and freedoms as possible under current U.S. and international law; rather it is to resume what they began before 9/11 which they deeply wish to fulfill - as they said in their own words - using the trial as a global media opportunity.

This attitude has been anticipated by most experts who have followed the Guantanamo "ideological" battle, particularly the al Qaeda-Jihadist treatment of the issue. It was fully predicted that at least Khalid Sheikh Mohammed (KSM) and Ramzi bin al Sheeba will take the lead in counter-prosecuting the United States and all its allies. Unlike in other comparable cases, analysts know how important it is for al Qaeda and their supporters around the world to bash the United States - and any other democracy that prosecutes Salafi terrorists - when the trials are ongoing. At that juncture, three elements will converge into one powerful force, all determined to score points against America.

First, there is the Bin Laden organization which thrives on fiery declarations issued by its members on trial. Their goal is, of course, to maximize the propaganda dividends. Every word in the statements made by KSM and al Sheeb, and the others as well, will become gold for the as Sahab machine, the maker of the video and audio material. To al Qaeda, the fate of the men in Guantanamo is not the issue, for in their Jihad they don't count. Rather, it is the amount of Jihadi propaganda material they can get out of this "battlefield" that really matters to them.

Second, and more importantly, there are the other Jihadists worldwide. These are the Jihadists who still have their freedom and will be able to carry out virulent attacks against the trials and the United States. In doing this, a political price will be paid by America, even for trying the most obvious terrorists - the planners and backers of the 9/11 operation. Organizations, movements, parties, ideologues, militants and a vast constellation of Salafists - and also Khomeinists - are and will continue to attack Guantanamo itself while ignoring the defendants.

The goal of these other free Jihadists is to deter Washington - and other Western countries - from trying the incarcerated Jihadists. Their thinking is that if the U.S. gets condemned in the global media for prosecuting and trying and eventually sentencing the worst of the worst, America will be intimidated when it tries to prosecute non-al Qaeda Jihadists. In addition, other "hidden forces" sympathetic to the goals, but not the methods, of Bin Laden will support the campaign against the trial by enlisting their resources in the media to serve the "anti-trial" campaign (even though this is not a pro-al Qaeda trend).

Third, the conglomeration of all anti-American political forces, including many radical circles within the United States, will unleash its attacks against Guantanamo and what it represents, meaning the existence of the "War on Terror". A significant ideological segment of the political establishment in America has been pushing the slogan of an "orchestrated war" which must be ended. To them, the trial of the terrorists in Guantanamo is an opportunity to bleed U.S. efforts in the confrontation, thereby enhancing their own domestic political fortunes and agendas.

These three elements are converging into (what is to them) the Battle of Guantanamo. Here is how it will take place.

First, the "team" on the inside of the courtroom will unleash any and all statements needed to create the environment for a martyrdom case: istishaad. They will claim the tribunal is not legitimate, the Guantanamo process is not legal, the procedure is not acceptable and that they want to receive the death penalty so they may become shuhada, or martyrs.

Then, the "production" will be picked up by al Qaeda and other Jihadi-Salafist entities around the world and will reappear in videos, audio and texts, as well as circulate around the world of militant networks.

The in-court "drama" will also be used by the Wahhabi and Muslim Brotherhood networks, that is the long term Jihadists, not praising the defendants but rather promoting some of the arguments made by the al Qaeda detainees. This stealth use of the "production" will serve to produce more incitements and solidify the Jihadi agenda.

For example, the campaign will target American credibility and the concept of a war on terror. Some of the statements by the defendants will be stressed, such as "we do not recognize your laws, but only Sharia." In short, a control room is already in place to feed off the Guantanamo trials and turn it into a victory in the War of ideas. The al Qaeda detainees will make their statements and will be sentenced, but the international Jihadists will thrive on these words.

Meanwhile in America, we have two indicators that we aren't really winning yet on this front. One indication is that elements within our government bureaucracy are now using the absolute wrong words (the so-called "lexicon") to fight this battle. The second indication is the stunningly paltry coverage of what should be known as the trials of the century, in favor of hyped coverage of trials much less significant.

Until these indications change, we are not contenders.

*************************

Dr. Walid Phares is the Director of the Future Terrorism Project at the Foundation for the Defense of Democracies and the author of "The Confrontation: Winning the War against Future Jihad."

President KennedyJune 13, 2008; Page A14Supreme Court Justice Anthony Kennedy isn't known for his judicial modesty. But for sheer willfulness, yesterday's 5-4 majority opinion in Boumediene v. Bush may earn him a historic place among the likes of Harry Blackmun. In a stroke, he and four other unelected Justices have declared their war-making supremacy over both Congress and the White House.

Boumediene concerns habeas corpus – the right of Americans to challenge detention by the government. Justice Kennedy has now extended that right to non-American enemy combatants captured abroad trying to kill Americans in the war on terror. We can say with confident horror that more Americans are likely to die as a result.

An Algerian native, Lakhdar Boumediene was detained by U.S. troops in Bosnia in January 2002 and is currently held at Guantanamo Bay. The U.S. military heard the case for Boumediene's detention in 2004, and in the years since he has never appealed the finding that he is an enemy combatant, although he could under federal law. Instead, his lawyers asserted his "right" – as an alien held outside the United States – to a habeas hearing before a U.S. federal judge.

Justice Kennedy's opinion is remarkable in its sweeping disregard for the decisions of both political branches. In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the President had worked out painstaking and good-faith rules for handling enemy combatants during wartime. These rules came in response to previous Supreme Court decisions demanding such procedural care, and they are the most extensive ever granted to prisoners of war.

Yet as Justice Antonin Scalia notes in dissent, "Turns out" the same Justices "were just kidding." Mr. Kennedy now deems those efforts inadequate, based on only the most cursory analysis. As Chief Justice John Roberts makes clear in his dissent, the majority seems to dislike these procedures merely because a judge did not sanctify them. In their place, Justice Kennedy decrees that district court judges should derive their own ad hoc standards for judging habeas petitions. Make it up as you go!

Justice Kennedy declines even to consider what those standards should be, or how they would protect national security over classified information or the sources and methods that led to the detentions. Eventually, as the lower courts work their will amid endless litigation, perhaps President Kennedy will vouchsafe more details in some future case. In the meantime, the likelihood grows that our soldiers will prematurely release combatants who will kill more Americans.

To reach yesterday's decision, Justice Kennedy also had to dissemble about Justice Robert Jackson's famous 1950 decision in Johnson v. Eisentrager. In that case, German nationals had been tried and convicted by military commissions for providing aid to the Japanese after Germany's surrender in World War II. Justice Jackson ruled that non-Americans held in a prison in the American occupation zone in Germany did not warrant habeas corpus. But rather than overrule Eisentrager, Mr. Kennedy misinterprets it to pretend that it was based on mere "procedural" concerns. This is plainly dishonest.

By the logic of Boumediene, members of al Qaeda will now be able to challenge their status in court in a way that uniformed military officers of a legitimate army cannot. And Justice Scalia points out that this was not a right afforded even to the 400,000 prisoners of war detained on American soil during World War II. It is difficult to understand why any terrorist held anywhere in the world – whether at Camp Cropper in Iraq or Bagram Air Base in Afghanistan – won't now have the same right to have their appeals heard in an American court.

Article I, Section 9 of the Constitution contains the so-called Suspension Clause, which says: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Justice Kennedy makes much of the fact that we are not currently under "invasion or rebellion." But he ignores that these exceptions don't include war abroad because the Framers never contemplated that a non-citizen, captured overseas and held outside the U.S., could claim the same right.

Justice Kennedy's opinion is full of self-applause about his defense of the "great Writ," and no doubt it will be widely praised as a triumph for civil liberties. But we hope it is not a tragedy for civil liberties in the long run. If there is another attack on U.S. soil – perhaps one enabled by a terrorist released under the Kennedy rules – the public demand for security will trample the Constitutional delicacies of Boumediene. Just last month, a former Gitmo detainee killed a group of Iraqi soldiers when he blew himself up in Mosul. And he was someone the military thought it was safe to release.

Justice Jackson once famously observed that the Constitution is "not a suicide pact." About Anthony Kennedy's Constitution, we're not so sure.

See all of today's editorials and op-eds, plus video commentary, on Opinion Journal.

**It struck me like a lightening bolt this a.m. as I was going off duty. As the SCOTUS has determined that the GITMO illegal combatants enjoy constitutional protections, then they enjoy ALL constitutional protections. It's like being a little bit pregnant, either you is or you ain't. **

"We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us,Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting) (“ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ”). This Court may not impose a de facto suspension by abstaining from these controversies.See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not appropriate in cases . . . in which the legal challenge ‘turn on the status of the persons as to whom the militaryasserted its power’ ” (quoting Schlesinger v. Councilman, 420 U. S. 738, 759 (1975))). The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention."

**Ok, as the detainees' due process rights have clearly been violated, not only must they be released, they can file 1983 actions against the USG and the US DOJ better start investigating/indicting every member of the US military for excessive force/illegal search and seizure and other constitutional rights violations. No use of force by the military complies with Tenn. V. Garner or Graham V. Connor or other caselaw. No detainee was arrested with a valid arrest or search warrant or interrogated in compliance with Miranda.**

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

A Quick Way Forward After BoumedieneEither Congress reasserts itself, or terror-friendly bedlam ensues.

By Andrew C. McCarthy

It is difficult to single out the most outrageous aspect of Justice Anthony Kennedy’s majority opinion in the Supreme Court’s cataclysmic Boumediene ruling last Thursday: The reckless vesting of constitutional rights in aliens whose only connection with our body politic is their bloody jihad against Americans; the roughshod ride over binding precedent to accomplish that feat; or the smug arrogance perfectly captured by dissenting Chief Justice John Roberts’s description of a “constitutional bait and switch” — a Court that first beseeches the political branches to enact a statutory procedure for handling combatant detentions, and then, once a thoughtful law is compliantly passed, invalidates the effort for its failure to satisfy the eccentric predilections of five lawyers. What is done, however, is done.

HANDWRITING ON THE WALL It should never have come to this. Ever since the Bush administration quite rightly called for a new enforcement paradigm after the 9/11 attacks — the criminal-justice system having proved itself grossly inadequate to protect national security during the Nineties — it has been apparent that shifting to a pure military system was problematic.

The war on terror is not like other wars. No war has a determinate end, but this one does not have a foreseeable ending scenario. With radical Islam, there will be no treaty, no terms of surrender, no conquering enemy territory. Instead, there is only vigilance until the enemy’s capacity to project power is quelled. Because of that, strict application of the laws of war — which permit indefinite detention until war’s end — strikes our influential legal elites as unduly onerous.

Our enemies, moreover, are terrorists who operate in the shadows, in civilian garb not military insignia. In a just world, that would inure to their detriment. In the world we inhabit, it perversely benefits them by sowing doubt about their status. It makes plausible the possibility that we have scooped up at least some people in error.

The public anger over 9/11 has faded. With a relentless campaign, fired by sympathetic media coverage, our legal elites have succeeded in raising popular concerns about the specter of innocents being held in perpetuity at the whim of the executive, without an opportunity to challenge their detention before an independent judge.

This was more of a political challenge than a legal one. Long ago, Congress and the administration should have joined forces to forge a comprehensive system that would answer those concerns. To their credit, the political branches did at least try to shore up the military detention system by providing, for the first time in history, enemy access to a civilian court — the D.C. Circuit federal appeals court — so jihadists could challenge the completed military proceedings. It is beyond arrogance that five Supreme Court justices did not allow that system to work; that, to bask in international huzzahs, they scrapped it before the D.C. Circuit could wrestle with a single case on a concrete record — before the tribunals could prove they were not kangaroo courts after all.

But let’s face it: The handwriting for what happened last Thursday has been on the wall since 2004. That’s when the Court, in a fit of imperious recklessness nearly the equal of Boumediene, decided in Rasul v. Bush that the jihadists had statutory habeas corpus rights. The handwriting was brought into starker relief in 2006 when, in Hamdan v. Rumsfeld, the Court selectively mined and tortured the language of the Geneva Conventions to vest the jihadists with trial rights under Geneva’s Common Article 3.

This has been coming at us like a runaway freight train. Congress and the administration should have seen it and stopped it. They failed to act, so the cure will be harder now — though we must, for the sake of our security, press ahead with a legislative cure.

THE FOLLY OF PUTTING COURTS IN CHARGE Why harder? Well, until last Thursday, alien enemy combatants had no American constitutional rights. Their rights were limited to whatever the political branches, chiefly Congress, chose to grant them. If Congress, with the administration’s help, had undertaken to devise a comprehensive system of rules and procedures for terrorist detention and trial — what I have several times since 2004 proposed as a “national-security court” (see, e.g., here, here and here — NR subscription required for the last one) — it is very likely that the Supreme Court would have stayed its hand. Indeed, the justices originally declined to hear the Boumediene case before changing their minds at the end of the 2007 term, as public criticism of the military system mounted.

But the political branches ignored the neon signs. Now the Court has decided that the combatants have constitutional habeas rights. If you can follow this, the bloc of liberal justices reasons that the framers designed our fundamental law to empower enemies of the American people to use the American people’s courts as a weapon to compel the American people’s commander-in-chief to justify his actions during a war overwhelmingly authorized by the American people’s elected representatives . . . even as those enemies continue killing Americans.

The upshot of the ruling is that the judiciary, not Congress, could now become the master of deciding what rights our enemies have in wartime. When rights are based on the Constitution, rather than on statutes, Congress may not reduce them. Courts assert the power to define their ultimate parameters.

In the context of war powers — powers that are political, not legal — that would be a disaster. Courts are not responsible for our national security. Their task is to ensure that parties litigating legal cases before them are afforded due process. Moreover, the judicial tendency, when the United States is a party, is to bend over backwards to eliminate not just the reality but the mere perception of unfairness to the adversary — even if that adversary happens to be a ruthless, incorrigible enemy of the United States who would, given his druthers, torch the Constitution and install freedom-hating sharia law.

Worse, while waging war is a society’s ultimate political act, and thus suited for management only by the society’s politically accountable officials, judges are insulated from the political process. They needn’t fear being removed or voted out of office if they impose a regime that is overly solicitous of terrorist rights and heedless of national security. They can do what Leftist politicians would do if they weren’t so worried about the ballot box.

This perfect storm of institutional responsibility, natural proclivity, and political immunity hardwires judges to ratchet up due process demands over time. In the warfare context, the price will be paid in American lives.

The most reprehensible aspect of the Boumediene ruling is thus Justice Kennedy’s diktat that all “questions regarding the legality of the detention [of combatants] are to be resolved in the first instance by the District Court” — as if Congress, the law writing branch of our government, had nothing to say about them.

Congress must ignore that brazen overstatement. Boumediene is a terrible decision, but all it means for the moment is that the jihadists held at Guantanamo Bay have been given the opportunity to press their cases — i.e., to seek their release from custody — in the federal district courts. The combatants have not been ordered released, and the narrow majority did not presume to prescribe a procedure for how the district courts should handle those cases.

THE WAY FORWARDThat is the job of Congress, and it must act now. Bear in mind, even in the civilian-justice system, where the judicial competence is generally undeniable, it is Congress that enacts rules of procedure and evidence. We do not leave judges free to make it up as they go along. How much less should we do so with respect to combatant detention — a war power as to which judges have no institutional competence?

There may not be time now for ambitious, comprehensive projects like sculpting a national-security court. Boumediene has produced a crisis that demands an immediate fix. But Congress could very quickly accomplish the more modest task of enacting rules and procedures for combatant habeas proceedings. In fact, there is already a model of sorts.

Long ago, our lawmakers enacted a statutory scheme to control pretrial detention in federal criminal cases. It is codified at Section 3142 of Title 18, United States Code. In cases involving the most serious charges and defendants with the most vicious criminal histories, Congress has directed courts to grant the government a presumption in favor of detention. In detention hearings, furthermore, the law permits the parties to proceed by offering hearsay and attorney proffers of evidence; the presentation of witnesses is rare, and needn’t be allowed at all. In addition, a court considering detention is entitled to rely on any information developed in other proceedings — including on the fact that a grand jury has found probable cause that the defendant committed the alleged crime.

Mind you, that is in civilian criminal proceedings where the defendant is presumed innocent. We have long permitted lengthy periods of incarceration without trial, much less conviction, and this system has repeatedly been upheld in the face of all manner of constitutional challenge.

Obviously, being held as an alien enemy combatant in a terrorist war against the United States is a far more serious matter than even the drug and violent crimes (to say nothing of flight risks posed by foreign defendants) that routinely result in civilian pretrial detention. Thus, Congress could quickly enact a statute requiring the district courts in combatant habeas cases to afford the commander-in-chief a presumption mandating detention. That is, if the government established a rational basis for believing the detainee was an enemy combatant, he would be ordered detained unless the detainee proved beyond a reasonable doubt that he was not an enemy combatant.

Congress could provide for the presentation of evidence by hearsay, proffer, and affidavit — with a directive that the court may not compel the government (particularly, the military and intelligence community) to produce witnesses for testimony in court. It could provide for classified intelligence to be presented to the judge ex parte, with only a non-classified summary provided to the combatant. It could require the court to give deference during wartime to the conclusion of combatant status review tribunals already conducted by the military (allowing judges to disregard those conclusions only upon a showing that the conclusion was irrational — the same standard that compels federal appeals courts, in every single civilian criminal case, to refrain from disturbing a trial court’s findings of fact).

To promote efficiency, since the issues in these cases are likely to be repetitive, Congress could also direct that all petitions be filed in the District of Columbia, with all appeals to the D.C. Circuit and, ultimately, the Supreme Court. Though I would prefer to see the cases directed to a specialized court, it is not practical to expect one could be designed in the short-term. We need a solution that can be implemented tomorrow.

If Congress were to enact such a law, patterned on the pretrial detention statute but properly imposing greater burdens on petitioners who are alleged to be wartime enemies rather than mere criminals, the result would be that only the most egregious miscarriage of justice would result in a finding that a detainee was not an enemy combatant. That is as it should be — especially given that (a) alien enemy combatants have never before been afforded such rights and (b) only four years ago, in Hamdi v. Rumsfeld, the Supreme Court itself said judicial deference to the commander-in-chief was due even if an alleged combatant was an American citizen.

We must, naturally, anticipate that the federal courts will find the occasional, egregious miscarriage of justice. Thus Congress should also provide for what would happen to such a combatant. In short, he should be detained until he can be either repatriated to his native country or sent to a country of our choosing which is willing to receive him; under no circumstances should he be released into the United States.

On that score, we must be mindful of an oft-overlooked fact: Unlike American citizens who file habeas-corpus claims challenging their detention after conviction in civilian cases, the alien enemy combatants making war on us are not relying solely — or even principally — on legal proceedings. To the contrary, they have governments aggressively pursuing their release by diplomatic means. That is why the detainee population at Gitmo is down to about 270 when once it was over 800.

Naturally, Sen. Barack Obama and other hard-Left Democrats are thrilled with Boumediene. They are enthused by the prospect that federal judges, if left to their own devices, could turn these proceedings into full-blown trials, with all the constitutional protections they would gladly give our enemies if they thought voters would let them get away with it.

We shouldn’t let them get away with it.

Unduly empowered by the bedlam of unguided judicial proceedings, many jihadists will be freed. If that happens, Americans will be killed. It is that stark, and it should be that intolerable. It is the solemn responsibility of our lawmakers to prevent that outcome. With an election looming, with nearly 200,000 young Americans putting their lives on the line, and with an enemy working energetically to reprise 9/11, every member of Congress should be challenged to tell us where he or she stands on Boumediene and its aftermath.

— Andrew C. McCarthy is author of Willful Blindness: Memoir of the Jihad and director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.

Last week's Supreme Court decision in Boumediene v. Bush has been painted as a stinging rebuke of the administration's antiterrorism policies. From the celebrations on most U.S. editorial pages, one might think that the court had stopped a dictator from trampling civil liberties. Boumediene did anything but. The 5-4 ruling is judicial imperialism of the highest order.

Boumediene should finally put to rest the popular myth that right-wing conservatives dominate the Supreme Court. Academics used to complain about the Rehnquist Court's "activism" for striking down minor federal laws on issues such as whether states are immune from damage lawsuits, or if Congress could ban handguns in school. Justice Anthony Kennedy -- joined by the liberal bloc of Justices John Paul Stevens, David Souter, Ruth Ginsburg and Stephen Breyer -- saves his claims of judicial supremacy for the truly momentous: striking down a wartime statute, agreed upon by the president and large majorities of Congress, while hostilities are ongoing, no less.

1First out the window went precedent. Under the writ of habeas corpus, Americans (and aliens on our territory) can challenge the legality of their detentions before a federal judge. Until Boumediene, the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention.

In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War. In a trilogy of cases decided at the end of World War II, the Supreme Court agreed that the writ did not benefit enemy aliens held outside the U.S. In the months after the 9/11 attacks, we in the Justice Department relied on the Supreme Court's word when we evaluated Guantanamo Bay as a place to hold al Qaeda terrorists.

The Boumediene five also ignored the Constitution's structure, which grants all war decisions to the president and Congress. In 2004 and 2006, the Court tried to extend its reach to al Qaeda terrorists held at Guantanamo Bay. It was overruled twice by Congress, which has the power to define the jurisdiction of the federal courts. Congress established its own procedures for the appeal of detentions.

Incredibly, these five Justices have now defied the considered judgment of the president and Congress for a third time, all to grant captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court.

Judicial modesty, respect for the executive and legislative branches, and pure common sense weren't concerns here either. The Court refused to wait and see how Congress's 2006 procedures for the review of enemy combatant cases work. Congress gave Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever. The justices violated the classic rule of self-restraint by deciding an issue not yet before them.

Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.

So our fighting men and women now must add C.S.I. duties to that of capturing or killing the enemy. Nor will this be the end of it. Under Boumediene's claim of judicial supremacy, it is only a hop, skip and a jump from judges second-guessing whether someone is an enemy to second-guessing whether a soldier should have aimed and fired at him.

President Bush has declared, rightly, that the government will abide by the decision. No American lives are yet imperiled, as the courts will have to wrestle with the cases for months, if not years. But the upshot of Boumediene is that courts will release detainees from Guantanamo Bay, or the Defense Department will do so voluntarily, in the near future.

Just as there is always the chance of a mistaken detention, there is also the probability that we will release the wrong man. As Justice Antonin Scalia's dissenting opinion notes, at least 30 detainees released from Guantanamo Bay -- with the military, not the courts, making the call -- have returned to Afghanistan and Iraq battlefields.

The Boumediene majority has two hopes for getting away with its brazen power grab. It assumes that we have accepted judicial control over virtually every important policy in our society, from abortion and affirmative action to religion. Boumediene simply adds war to the list. The justices act like we are no longer really at war. Our homeland has not suffered another 9/11 attack for seven years, and our military and intelligence agencies have killed or captured much of al Qaeda's original leadership. What's left is on the run, due to the very terrorism policies under judicial attack.

Justice Kennedy and his majority assume that terrorism is some long-term social problem, like crime, so the standard methods of law enforcement can be used to deal with al Qaeda. Boumediene reflects a judicial desire to return to the comfortable, business-as-usual attitude that characterized U.S. antiterrorism policy up to Sept. 10, 2001.

The only real hope of returning the Supreme Court to its normal wartime role rests in the November elections. Sometimes it is difficult to tell Sens. Barack Obama and John McCain apart on issues like campaign finance or global warming. But they have real differences on Supreme Court appointments. Mr. Obama had nothing but praise for Boumediene, while Mr. McCain attacked it and promised to choose judges like Chief Justice Roberts and Justice Samuel Alito, both dissenters.

Because of the advancing age of several justices (Justice Stevens is 88, and several others are above 70), the next president will be in a position to appoint a new Court that can reverse the damage done to the nation's security.

Mr. Yoo is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute. He was an official in the Justice Department from 2001-03.

This is June 2008. That means it marks the ten-year anniversary of Osama bin Laden’s indictment.He was first charged by my old office, the U.S. Attorney’s Office for the Southern District of New York, in June 1998. That was before the bombings of the U.S. embassies in Kenya and Tanzania (hundreds killed), before the bombing of the U.S.S. Cole (17 U.S. members of the U.S. Navy killed), and before 9/11 (nearly 3000 Americans killed). So it’s fair to ask: How is that strategy of prosecuting him in the criminal-justice system working out?

That’s a question Sen. John McCain ought to be putting to Sen. Barack Obama every day.

Sen. Obama, the Democrat’s presumptive nominee, made some astounding statements yesterday which provided his views on confronting the most urgent challenge facing the American people — that of radical Islam.

Taking aim at the Bush approach of regarding our terrorist enemies as, well, enemies, rather than criminal defendants clothed in all the rights and privileges of those American citizens whom these enemies pledge to kill, Obama asserted:

What we know is that, in previous terrorist attacks — for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.

And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, “Look, this is how the United States treats Muslims.”

So that, I think, is an example of something that was unnecessary. We could have done the exact same thing, but done it in a way that was consistent with our laws.

This is a remarkably ignorant account of the American experience with jihadism. In point of fact, while the government managed to prosecute many people responsible for the 1993 WTC bombing, many also escaped prosecution because of the limits on civilian criminal prosecution. Some who contributed to the attack, like Khalid Sheikh Mohammed, continued to operate freely because they were beyond the system’s capacity to apprehend. Abdul Rahman Yasin was released prematurely because there was not sufficient evidence to hold him — he fled to Iraq, where he was harbored for a decade (and has never been apprehended).

But let’s assume incorrectly, for argument’s sake, that everyone was brought to justice in that case. What about Khobar Towers, Sen. Obama? After Iran and Hezbollah, perhaps with al-Qaeda’s assistance, killed 19 members of the United States Air Force, the Clinton administration responded with … a criminal investigation. The result? No arrests — in fact, no indictment was even filed until 2001.

After the embassy bombings, the aforementioned bin Laden was indicted along with his top henchman Ayman al-Zawahiri and nearly two dozen others. Exactly six of those men have been prosecuted as a result. And of those, the top-ranking al-Qaeda figure, Mamdouh Mahmud Salim, has never been tried for the embassy bombings. When we gave him all the glorious privileges of the American Constitution, he used his access to free legal help as an opportunity to attempt a kidnapping escape from custody — in the course of which he maimed a prison guard by stabbing him in the eye before being subdued.

Then, of course, there was the October 2000 attack on the Cole in Aden harbor. No arrests, no indictment until well after the 9/11 attacks. The indictment has now been on the books for years as our Yemeni “allies” have pretended to pursue the al-Qaeda perpetrators — who, of course, have been permitted to escape from confinement. There is no prospect of an American prosecution because of the justice system’s painfully obvious limitations. Those terrorists are free to plot more American deaths, unless, of course, our military or intelligence operatives get them first.

And that’s the point isn’t it? Khalid Sheikh Mohammed has been under indictment by the Justice Department even longer than bin Laden. He was first charged in 1996, in connection with the so-called “Bojinka” plot to blow up American airliners as they flew over the Pacific (one Japanese tourist killed during a dry run). The plot was also found to include plans to assassinate President Clinton and Pope John Paul II.

So what happened? Because criminal prosecution is incapable of dealing with the likes of KSM — a highly insulated foreign jihadist operating from terror safe havens sprinkled across the globe — he remained free to plot murder and mayhem for years, finally masterminding 9/11.

KSM was apprehended only after the Bush administration changed strategy and started regarding terrorists as what they are: wartime enemies, rather than in possession of Obama’s suggested “criminal defendants” status.

The fact is that we used the criminal justice system as our principal enforcement approach, the approach Obama intends to reinstate, for eight years — from the bombing of the World Trade Center until the shocking destruction of that complex on 9/11. During that timeframe, while the enemy was growing stronger and attacking more audaciously, we managed to prosecute successfully less than three dozen terrorists (29 to be precise). And with a handful of exceptions, they were the lowest ranking of players.

When an elitist lawyer like Obama claims the criminal-justice system works against terrorists, he means it satisfies his top concern: due process. And on that score, he’s quite right: We’ve shown we can conduct trials that are fair to the terrorists. After all, we give them lawyers paid for by the taxpayers whom they are trying to kill, mounds of our intelligence in discovery, and years upon years of pretrial proceedings, trials, appeals, and habeas corpus.

As a national-security strategy, however, and as a means of carrying our government’s first responsibility to protect the American people, heavy reliance on criminal justice is an abysmal failure.

A successful counterterrorism strategy makes criminal prosecution a subordinate part of a much broader governmental response. Most of what is needed never happens in a courtroom. It happens in military operations against terrorist strongholds; intelligence operations in which jihadists get assassinated — without trial; intelligence collections in which we cozy up to despicable informants since only they can tell us what we need to know; and aggressive treasury actions to trace terror funds.

That is how you stop the homeland from being attacked, which is what we have done for the last seven years. And it is that from which Obama wants to move away.

Obama would bring us back to September 10th America. And September 10th is sure to be followed by September 11th .

Muslim extremist Abu Qatada to receive £8,000 incapacity benefits a year - for his bad back

By Tom KellyLast updated at 9:20 AM on 23rd June 2008

Abu Qatada is to receive almost £8,000 a year in benefits because he has a bad back. The fanatical cleric, said to be Osama Bin Laden’s ambassador in Europe, will get £150 a week of taxpayer’s cash after being released from jail last week. He was granted the incapacity benefit because his condition makes him unfit to work – even though a curfew allows him out of his home for only two hours a day, meaning it would be almost impossible for him to get a job.

Qatada left Long Lartin prison in Worcestershire after the Appeal Court blocked his deportation to Jordan. He is now living in an £800,000 four-bedroom Edwardian semi in a tree-lined street in West London. His incapacity allowance will push the family’s total annual handouts to more than £50,000. His wife has been claiming £45,000 a year in child benefit, income support, housing benefit and council tax credit for the past four years.

Steve Pound, Labour MP for Ealing North, which borders Qatada’s West London home, said: ‘This is adding insult to injury. He abuses us and bleeds us dry at the same time.

‘The sooner he gets back to Jordan the better. I for one would put him in the boot of my car and drive him there myself.’

Taxpayers are also footing an estimated £500,000 a year bill to provide round-the-clock surveillance on Qatada, who has been described by a judges as a ‘truly dangerous individual’. He arrived in Britain 14 years ago on a forged passport and was granted asylum the following year. He was convicted in his absence in Jordan of involvement with terror attacks in 1998, and of plotting to plant bombs during the Millennium-celebrations. Last week a judge freed the cleric on bail after ruling he would face an unfair trial if deported to Jordan.

But the Special Immigration Appeals Commission imposed un-precedented conditions on his release, including a 22-hour curfew and wearing an electronic tag.

* Nearly a third of those claiming ‘sicknote’ benefits - some 800,000 people - have been doing so for more than a decade, figures revealed. In total 2.64million Britons live on incapacity benefit or related handouts.

Details of how hundreds of thousands appear to have backed away from returning to work throws light on the way incapacity benefit has replaced unemployment benefit as the real measure of worklessness. Those who say they are unemployed and claim the Jobseekers’ Allowance get less money than those on sickness benefits - and come under pressure to find work. The cost of incapacity benefit to the taxpayer is now calculated to run at £16billion a year. The figure includes the cost of housing benefit and council tax benefit that can be claimed by anyone receiving the incapacity payments. Checks on the handout to be introduced this autumn will only affect new claimants

Tortured EvidenceJuly 1, 2008Democrats on Capitol Hill are continuing their "torture" hearings, with selective leaks suggesting that government officials delighted in cruel and inhuman punishment. Allow us to tell you the story they aren't telling friendly reporters.

Consider the case against former Pentagon General Counsel William Haynes, who in 2002 recommended the use of some "enhanced" interrogation techniques, such as light deprivation, stress positions and removal of clothing. Then-Secretary of Defense Donald Rumsfeld signed off on that recommendation. Michigan's Carl Levin, the main Monday morning Senator, has been portraying this as illegal and disdainful of other Pentagon lawyers.

But Mr. Haynes was offering advice consistent with Justice Department legal briefs. And a document produced by Mr. Levin's own investigation shows that Mr. Haynes was willing to listen to internal critics. Among Mr. Levin's star witnesses was former Navy General Counsel Alberto Mora. That's the same Mr. Mora who in 2004 wrote a long statement about his role in the interrogation debate, and his interaction with Mr. Haynes.

According to that document, Mr. Mora arranged a meeting with Mr. Haynes in late 2002 to object to certain Guantanamo interrogation techniques. Mr. Haynes explained that he believed the techniques were legal and weren't torture. Mr. Mora agreed torture was not the "intent," but worried the interrogations could get out of hand. "Mr. Haynes listened attentively throughout. He promised to consider carefully what I had said," Mr. Mora wrote.

Several weeks later, concerned the policy hadn't changed, Mr. Mora again met with Mr. Haynes, who said that some U.S. officials felt the techniques were necessary to elicit information from men believed to have participated in 9/11 with knowledge of other terror plots. "I acknowledged the ethical issues were difficult. I was not sure what my position would be in the classic 'ticking bomb' scenario . . . ," Mr. Mora wrote.

Mr. Haynes said he'd get back to him, and he did by initiating two meetings – including one between Mr. Mora and the legal adviser to the Chairman of the Joint Chiefs of Staff – so Mr. Mora could register his concerns. "I regarded Mr. Haynes's initiative to schedule the above two meetings as a positive development and a sign that he not only took my arguments seriously, but that he possibly agreed with some or many of them."

About five days later, Mr. Rumsfeld suspended the techniques, and set up a working group to develop new recommendations. It was Mr. Haynes who oversaw an effort to find consensus among that group. Mr. Mora was also pleased by a letter Mr. Haynes sent to Senator Patrick Leahy, which Mr. Mora wrote was "the perfect expression of the legal obligations binding DOD and the happy culmination of the long debates in the Pentagon as to what the DOD detainee treatment policy should be. I wrote an email to Mr. Haynes expressing my pleasure on his letter and stating that I was proud to be on his team." Keep in mind this was written by one of the most vocal internal Pentagon critics of aggressive interrogation.

We report all this because it shows that, even as Senator Levin tries to portray a Bush Administration conspiracy to ram through "illegal" interrogation methods, what we really had in the period following 9/11 was a legitimate difference of opinion. President Bush ordered political appointees to prevent another attack, in part by breaking al Qaeda detainees, and they argued over how best to do this. Mr. Levin is now using those internal disagreements to play "gotcha," when he should be congratulating Administration officials for their willingness to listen and their moral conscience.

What isn't in doubt is that these public servants acted in good faith, and their efforts are one reason the country hasn't been attacked again. As political smears go, this tortured exercise is low even by Carl Levin's degraded standards of fairness.WSJ

The Guantanamo Bay detention facility's days are clearly numbered. John McCain and Barack Obama have said it should be closed, and even President George W. Bush would like to see it abandoned.

Whatever legal benefit Guantanamo offered for being offshore has been largely eliminated by the Supreme Court's decision in Boumediene v. Bush, which extended American constitutional protections to the foreign fighters held there. That decision has created new and vexing legal and practical problems for the U.S. military. Here are some of the issues:

AP Fort Leavenworth: Is Kansas ready for KSM? - Habeas games: The Supreme Court has now taken a central role in deciding who may be captured and detained as an enemy combatant , ruling that detainees, akin to criminal defendants, are constitutionally entitled to challenge their confinement through "habeas corpus" proceedings in federal district courts. The court's reasoning extends far beyond how "unlawful enemy combatants" like the Guantanamo detainees are treated. Legitimate prisoners of war in a future conventional conflict – who now receive less legal process than the detainees at Guantanamo – also can demand habeas proceedings. Thus, American forces, if they wish to be sufficiently certain of holding enemy prisoners anywhere in the world, must set about securing CSI-style evidence to satisfy the judges that their captives are indeed what they seem to be – enemies in arms against the United States.

Collecting this evidence on the battlefield will cost lives and impair combat effectiveness. Moreover, the need to litigate habeas proceedings, particularly when applied to a large body of prisoners, will impose great additional burdens on the U.S. military, which is already stretched thin by the demands of global operations. One example: Operations in Guantanamo had to be fundamentally recast to accommodate hundreds of detainee lawyers and their support personnel.

It is deplorable that American forces can no longer detain captured enemy combatants without a burdensome judicial process. But Congress cannot fix the problem by legislating new limits on detainee due-process "rights." Until the Supreme Court's balance changes and Boumediene is overruled, the armed forces will be driven to a tragic "catch and release" policy. The most senior enemy operatives, assuming enough evidence can be collected, will be tried for war crimes before military commissions. Others will be taken into custody, interrogated, and then transferred to the custody of allied governments – or even set free in the theater of action after they have been disarmed.

- Processing Guantanamo detainees: With respect to the 270 or so Guantanamo detainees, some are being, or will be, tried by military commissions for war crimes. The Court's Boumediene decision should not prevent those trials from going forward. Indeed, they should be accelerated, and all enemy combatants in U.S. custody, against whom sufficient evidence of war crimes exists, should be brought expeditiously to trial. But for many of those not slated for these trials, habeas proceedings may well result in a release order if the government does not have sufficient evidence to satisfy a civilian judge as to their enemy combatant status.

This is the only area where Congress can and should promptly act. It may be that a handful of detainees deserve "parole" into the United States on humanitarian grounds, but none of them have a right to enter, even if a federal court does order their release. Where such parole is inappropriate, Congress should establish a category of detention that permits aliens not otherwise lawfully admitted to this country to be held until a suitable foreign government can be found to accept them, however long that may be.

Under current law, aliens in the U.S. without a lawful basis for being here, and for whom no receiving country can be found, can only be held up to six months. The Constitution grants Congress plenary authority over questions of immigration and nationality and the Supreme Court has – so far – respected that authority.

- Prison for Guantanamo detainees: That leaves the problem of what to do with those Guantanamo detainees who cannot be repatriated but who a habeas court determines can be properly detained. For all of the real diplomatic costs incurred over Guantanamo, that base was admirably suited to house captured enemy combatants. It is under complete U.S. control, far from any active battlefield, and it is isolated from nearby civilian populations – largely thanks to the surrounding "workers paradise" run by the Castro brothers. In short, the base is easily secured and presents no "host nation" or "not in my backyard" issues. It is those issues that make Guantanamo's prompt closure a bigger problem than almost anyone imagines.

Although many members of Congress (mostly Democrats hostile to Mr. Bush) have decried the detainees' fate at Gitmo, few have offered their states or districts as a suitable alternative, and chances are none will. Last July, a Senate resolution opposing transfer of Gitmo detainees "stateside into facilities in American neighborhoods" passed 94-3 (with Sen. Obama abstaining). The detainees' lawyers may claim that they are mostly innocent aid workers, supposedly sold to U.S. forces by unscrupulous Afghan or Pakistani bounty hunters, but our representatives in Congress know better. Transferring the Guantanamo detainees to the U.S. would create a security problem of unrivaled character. The new location would immediately become a particular target for al Qaeda and other jihadist groups.

The logical place to hold them, of course, would be the Military Disciplinary Barracks at Fort Leavenworth, Kan. But, unlike Guantanamo Bay, Fort Leavenworth is not isolated from the surrounding civilian population. It is very much a part of the communities of eastern Kansas and western Missouri. Other alternatives, such as the old federal prison on Alcatraz Island, are also surrounded by population centers.

For that very reason it is Congress that must make the decision where to put the detainees. If that is to be Fort Leavenworth , then the Kansas and Missouri delegations must have the opportunity to speak on the subject in the House of Representatives and the Senate. Neither President Bush nor his successor, Democrat or Republican, should act without a full and complete congressional debate on the subject, and legislation establishing the new locus for detainee operations.

Mr. Bush has taken much on his own shoulders in keeping the U.S. safe since 9/11. He has often been criticized for not consulting Congress or obtaining legislation, and has been equally vilified when consultation and legislation have been secured. This is one issue where both law and reason suggest the president should bring Congress into the decision-making process early, so that it can bear its full and fair share of responsibility for the consequences.

Messrs. Rivkin and Casey , Washington attorneys , served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.

The Enemy Detainee MessJuly 3, 2008; Page A10Supreme Court Justice Anthony Kennedy has departed for summer vacation, but what a mess he's left behind, especially for the U.S. military. His 5-4 decision requiring habeas corpus review for foreign terrorists is already creating confusion and problems about how to handle these dangerous enemies.

The Bush Administration is currently debating how to respond to Mr. Kennedy's war-fighting ukase in Boumediene v. Bush, with President Bush set to make a decision soon. Some in the Administration want Mr. Bush to abolish not merely Guantanamo but even military commissions, the special tribunals set up to try Khalid Sheikh Mohammed and others for their war crimes. This would compound the mistake of Boumediene, and do away with what has long been a useful tool of military justice.

It is already clear to nearly everyone in the Administration that it will be impossible for the U.S. to hold most detainees from now on. That's true not merely at Gitmo, but even in Afghanistan, Iraq and other foreign battlefields. Earlier this month, lawyers filed a lawsuit on behalf of a detainee held at the U.S. military prison at Bagram air base near Kabul. It's only a matter of time before suits are filed demanding habeas writs for anyone captured and held by GIs for any length of time anywhere in the world.

Regrettably, the Administration will now have to let most enemy fighters go. The burden of gathering enough evidence to meet the habeas standards of U.S. federal courts is simply too great under battlefield conditions – and in any case is far too dangerous. This week a panel of the D.C. Circuit Court of Appeals rejected the enemy combatant status of a Gitmo detainee captured after training in al Qaeda camps in Afghanistan. The press has reported this as if the Bush Administration had invented a case against an innocent shepherd. But the truth is that in the fog of battle it is impossible to gather evidence the way a Manhattan cop can. There's no "CSI: Kandahar."

While GIs gathered shell casings or interviewed witnesses to meet a U.S. judge's habeas standard, they would leave themselves open to counterattack or sniper fire. No commander – and no Commander in Chief – can ask his troops to put themselves in danger to satisfy Justice Kennedy's legal afflatus. This is what Justice Antonin Scalia meant when he wrote that Americans will die as a result of Boumediene.

Justice Kennedy won't want to hear this, but this means that some enemy combatants will be shot on the battlefield rather than captured. Most who are captured will be interrogated for a brief time and released. Some will be set free entirely, while others will be handed over to the tender mercies of our allies on the ground in Iraq or Afghanistan.

The U.S. will still require some kind of detention for the worst combatants – such as KSM, and others we will want to put on trial. But if Gitmo is no longer a prison, some U.S. domestic prison will have to house these men while they await a habeas hearing and trial. If a habeas court finds the evidence against them unpersuasive, they can then be held only for six months under immigration law before they are deported. If no country will accept them, the possibility exists that they will be released here. It will be fascinating to watch the Congressfolk who cheered Boumediene now saying "not in my backyard." What does Pat Leahy think about a Vermont destination?

That still leaves the issue of trials for those who are found to be enemy combatants. The State Department is arguing that Mr. Bush should now cashier the entire post-9/11 system, including Gitmo and military commissions. The argument is that the U.S. will get no diplomatic benefit from refusing to hold future detainees as long as the commissions continue. In any case, State's legal sages say, the Supreme Court will eventually declare military commissions unconstitutional too.

But we doubt even Justice Kennedy would disallow commissions, which have existed throughout American history. After the Civil War, they were even used against the KKK's attempts to defeat Reconstruction of the South. After six long years, about 20 enemy combatants (including KSM) are now set for the tribunals, and multiple trials are under way. If Mr. Bush shuts down the commissions at this late date, the military justice process would have to start over.

It would insult the 9/11 families if justice for KSM and the others who planned those attacks is delayed once again. Assuming they are convicted, they will have the right of appeal. But would five Supreme Court Justices really set free the men who plotted the murders of 3,000 Americans? As for diplomacy, those who dislike America won't bother to distinguish between military commissions and courts martial. They'll find any military trials unfair.

The killers of 9/11 need to be put on trial, and soon. Americans need to hear them revel in their jihad, boasting that they would kill again if they get the chance. Justice Kennedy needs to hear it too.

Mr. Mukasey's Modest ProposalJuly 22, 2008; Page A18We had not known previously that among Attorney General Michael Mukasey's skills was the satirical bite of Jonathan Swift. Only a Swiftian wit could have come up with Mr. Mukasey's proposal in a speech yesterday that the Solons of Congress solve the legal riddles of the Supreme Court's recent Boumediene decision on the rights of Guantanamo detainees. Absent "guidance from Congress," the AG said, "different judges even on the same court will disagree about how the difficult questions left open by Boumediene will be answered."

We can hear the shrieks from the Judiciary Committee chairs, Senator Patrick Leahy and Representative John Conyers: Guidance from Congress?! Us??!!!

Among the reasons given by Mr. Mukasey for "guidance" from Congress is the risk of "inconsistent rulings and considerable uncertainty." Inconsistency and uncertainty of outcomes is of course the goal of most modern-day Congressional enactments.

Satire aside, the Attorney General was right in stepping forward to say that someone has to take responsibility for the consequences of the Supreme Court's 5-4 ruling last month that Gitmo prisoners can petition for habeas corpus in the federal court system. With some understatement, he noted that the ruling had left "many significant questions open" on how these proceedings should be conducted.

As the former chief judge of the Southern District of New York, where he presided over terrorist trials, Mr. Mukasey is well aware of the dangers that multiple such legal proceedings could pose. Chief among them is the risk of letting terrorists at large hear how the U.S. gathered intelligence about their captured comrades-in-bombs. To enhance consistency with the some 200 pending cases, the AG suggested that Congress give one court jurisdiction over the cases.

None of this will happen. Once into the federal courts, the process most likely will bog down into a Babel of conflicting procedural and legal rulings. The Supreme Court itself may have to revisit its decision. But as to the Attorney General's assertion that this job falls "within the historic role and competence of Congress," that could indeed be called a modest proposal.

============

Actually Mukasey's proposal reads to me like a rather clever shift of responsibility to Congress in order to make it face up to just how horrendous the B. decision is. If the Bush White House were to try to come up with a solution, whatever they did would be sliced and diced over in Congress and in the media.

To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court will be able to more effectively micromanage the detainees by holding them on the Supreme Court grounds, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

July 24, 2008

Mr. GOHMERT introduced the following bill; which was referred to the Committee on Armed Services, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court will be able to more effectively micromanage the detainees by holding them on the Supreme Court grounds, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Giving Inmate Terrorists More Opportunities (GITMO) Act of 2008’.

SEC. 2. FINDINGS.

Congress finds the following:

(1) The United States Supreme Court issued an opinion styled Boumediene v. Bush on June 12, 2008.

(2) Justice Anthony Kennedy, in the court’s majority opinion, held that foreign terrorism suspects held at the Guantanamo Bay naval base in Cuba have constitutional rights to challenge their detention in United States courts.

(3) This is an obvious effort on the part of the Supreme Court to micromanage the detainment and disposition of detainees in the War on Terror who are dedicated to destroying innocent people and the American way of life.

(4) The United States Supreme Court clearly needs increased opportunity to oversee the handling of the enemy combatants, as it has seen fit to take a greater role in managing the Global War on Terror, which is a duty previously exercised by the Executive Branch.

(5) There can be no better way for the United States Supreme Court to exercise its new self-appointed war powers than to house the prisoners whom it has taken a greater role in overseeing.

SEC. 3. TRANSPORTATION AND DETAINMENT OF ENEMY COMBATANTS.

(a) Transportation- The Secretary of Defense shall immediately transport all enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court shall hold the prisoners on the Court grounds, confined by adequate fencing.

(b) Shelter on Supreme Court Building Grounds- The Secretary of Defense, in conjunction with Justice Anthony Kennedy, the author of the majority opinion in Boumediene v. Bush, is directed to provide shelter for the detainees outside the United States Supreme Court building, but on the building grounds. The Secretary of Defense shall provide guards to watch over the prisoners and shall implement a system to ensure that the prisoners receive the appropriate amount of food and water. Should the detainees need the use of restroom facilities, they shall use the facilities inside the United States Supreme Court building. The Chief Justice, if the Chief Justice so chooses, may perform the duties of Justice Anthony Kennedy under this subsection.

(c) Guard Duty- If any of the nine Supreme Court justices desire at any time to stand guard over the prisoners, or to provide the prisoners with their meals or water, or both, then the justices shall be permitted to perform these functions whenever they want.

SEC. 4. ENFORCEMENT.

If either the Secretary of Defense or any justice of the Supreme Court refuses to carry out their duties under this Act, then their respective department or court shall receive funding for the next fiscal year at half the level of funding appropriated for the current fiscal year, or until such time as the Supreme Court no longer desires to micromanage the prisoners who have sworn to destroy our way of life.

Captive Miranda, Lord knows I have not given a thought to the paperwork you sent me.

Let me tell you, Captive, that our release is not in the hands of the lawyers or the hands of America. Our release is in the hands of He who created us.

The poem, "To My Captive Lawyer, Miranda," was written by Abdullah Saleh Al-Ajmi while he was a detainee at Guantanamo Bay, Cuba. No doubt, it would have given the former detainee, who was released in 2005, immense satisfaction to know that his last earthly deed was referenced in Justice Antonin Scalia's dissenting opinion in Boumediene v. Bush. That's the recent Supreme Court decision that gave Guantanamo detainees the constitutional right to challenge, in habeas corpus proceedings, whether they were properly classified by the military as enemy combatants.

Abdullah Saleh Al-Ajmi, on the left, in a martyrdom video posted on an al Qaeda Web site. Al-Ajmi, a 29-year-old Kuwaiti, blew himself up in one of several coordinated suicide attacks on Iraqi security forces in Mosul this year. Originally reported to have participated in an April attack that killed six Iraqi policemen, a recent martyrdom video published on a password-protected al Qaeda Web site indicates that Al-Ajmi carried out the March 23 attack on an Iraqi army compound in Mosul. In that attack, an armored truck loaded with an estimated 5,000 to 10,000 pounds of explosives rammed through a fortified gate, overturned vehicles in its path and exploded in the center of the compound. The huge blast ripped the façade off three apartment buildings being used as barracks, killing 13 soldiers from the 2nd Iraqi Army division and seriously wounding 42 others.

Using the name "Abu Juheiman al-Kuwaiti," Al-Ajmi is seen on the video brandishing an automatic rifle, singing militant songs and exhorting his fellow Muslims to pledge their allegiance to the "Commander of the Faithful" in Iraq. Later, Al-Ajmi's face is superimposed over the army compound, followed by footage of the massive explosion and still shots of several dead bodies lying next to the 25-foot crater left by the blast.

Bill Roggio / The Long War Journal Abdullah Saleh Al-Ajmi killed 13 people in this March 23 truck bombing in Mosul, Iraq—after he was released from U.S. custody at Guantanamo Bay. In 2006, Al-Ajmi's "Miranda" poem was included in a recitation of detainee poetry at a "Guantanamo teach-in" sponsored by Seton Hall Law School. The all-day event was Webcast live to 400 colleges and law schools across the country and abroad. Some of the lead attorneys pushing for detainee rights participated in the event, which began with organizers boasting about the diversity of the event's participating schools as exemplified by the American University of Paris, the American University in Cairo, the U.N. University for Peace in Costa Rica, Princeton Theological Seminary, and Parsons School of Design in New York City. One of Al-Ajmi's lawyers gave a presentation about detainee treatment entitled, "Insults to Religion."

Marc Falkoff, a former Covington & Burling attorney-turned-law-professor who represents several detainees, read the poems and later published a selection of them in a book ("Poems from Guantanamo: The Detainees Speak," Iowa University Press, 2007.) In his introductory remarks to the students, Mr. Falkoff described Al-Ajmi and the other detainee poets as "gentle, thoughtful young men" who, though frustrated and disillusioned, expressed an abiding hope in the future. "One thing you won't hear is hatred," he said, "and the reason you won't hear it is not because I edited it out, it's because it's not there in the poetry." Then how to explain the fact that -- on the advice of Al-Ajmi's attorneys -- "To My Captive Lawyer, Miranda," was excluded from the published collection last year? Mr. Falkoff, who also has a Ph.D. in literature, refused to explain further, though he insists on describing Al-Ajmi's verse as a "love poem to his lawyer."

Miranda, antelope, I am madly in love with captive Roman gazelles.

I pledge that if I ever see you outside this jail, I shall capture you and take you in a starry night.

In light of Al-Ajmi's deadly suicide attack, his poem seems less, as Mr. Falkoff insisted in a recent interview, "a trope about being a prisoner of love," and more about taunting his lawyers and mocking the American legal system. As any devotee of the successful "Law & Order" television franchise knows, "Miranda" is more than a fanciful female name. It is also the name of another infamous prisoner -- Ernesto Miranda, the career criminal and itinerant sex offender whose 1966 landmark legal case resulted in the "Miranda rule," requiring law enforcement officers to inform criminal suspects in custody of their right to remain silent and their right to an attorney during questioning.

It is easy to imagine the detainees' attorneys, upon first arriving at Guantanamo in 2004, earnestly explaining to their incredulous clients how the Miranda warning works. Incredulous, because detainees would certainly grasp that extending the full array of Fifth and Sixth Amendment rights to unlawful enemy combatants would have a devastating effect on vital intelligence-gathering efforts. Indeed, lawyers have already become part of the al Qaeda tool kit. When Khalid Sheikh Mohammed was apprehended in Pakistan in 2003 and handed over to the U.S., he reportedly told his initial interrogators, "I'll talk to you guys when you take me to New York and I can see my lawyer."

After the Boumediene decision, that is no longer an empty threat. While Justice Anthony Kennedy stated in his 5-4 majority opinion that detainees are entitled to habeas review in the federal courts, he failed to expressly outline what legal standards the government would have to meet for detainee cases to pass constitutional muster. Many legal experts contend that if the habeas lawyers succeed in attaining for detainees the same degree of procedural rights as those extended to ordinary criminal defendants in domestic cases, "lawyering up" would mean the end of terrorist questioning, not the beginning.

If this is what "Miranda" represents, no wonder an Islamist suicide bomber would love her.

Miranda, what can I say? The heart is incarcerated in prisons of injustice, tortured and deprived, targeted with sharp, poisoned arrows by the hands of oppressors who have no mercy. Tell the mothers about their sons, the prisoners, brothers in bondage . . . they shall walk home.

But many in the detainees' home countries aren't welcoming them with open arms. The bombings carried out by Al-Ajmi and two other Kuwaiti nationals have stirred a public outcry from their fellow citizens. Al-Ajmi's own father has reportedly threatened to sue the government of Kuwait for issuing his son a passport and failing to live up to the terms set forth in the transfer agreement with U.S. State Department as a condition of his release. Kuwait's negligence and the State Department's failure to follow up have resulted in calls from the public for the detainees to stay right where they are and for Guantanamo to stay in operation.

"I believe the U.S. State Department knows the prisoners well, their way of thinking, and their plans after being released from prison," wrote Ali Ahmad Al-Baghli, Kuwait's former Minister of Oil, in the Arab Times after news of Al-Ajmi's suicide attack broke. He specifically criticized the outspoken leader of the Kuwaiti detainee families committee, Khalid Al-Odah, (interestingly, he is one of the "translators" Mr. Falkoff acknowledges in his poetry book), whose son remains at Guantanamo. Al-Odah hired a Washington, D.C., public-relations firm to "humanize" the detainees with sympathetic press.

"We cannot romanticize them into fallen heroes of Western neo-imperialism," wrote Shamael Al-Sharikh, a columnist for the Kuwaiti Times, in an article advocating that Guantanamo stay open, "because we are as much potential victims of terrorist attacks as [Americans] are."

As an example of where we might be headed after Boumediene, consider the situation in Britain. In June, Abu Qatada, a radical imam wanted in connection with bombing conspiracies in several countries, was released from jail after seven years of fighting his deportation. Qatada, whose recorded sermons were found in the Hamburg apartment of the 9/11 hijackers, was described by an immigration appeals commission as a "truly dangerous individual" who was "heavily involved, indeed at the center of terrorist activities associated with al-Qa'eda."

But judges in Britain will not extradite him to Jordan, where he was convicted in absentia, because his lawyers allege that the evidence against him might have been obtained by torture. Sending him packing under these circumstances, the court ruled, would violate the European Convention on Human Rights.

The result is a perverse situation in which, to protect the human rights of the man who issued a fatwa to kill the wives and children of Egyptian police and army officers, the British public pays a yearly tab of $1.1 million to cover Qatada's round-the-clock police surveillance, housing and welfare assistance for him, his wife and five children.

For those who scoff at the idea that U.S. judges would release a dangerous terrorist here, think again. As Attorney General Michael Mukasey pointed out in a speech earlier this month at the American Enterprise Institute, the Boumediene decision was vague on every detail but one. The ruling said that for habeas review to mean anything, the court must have the power to release. What do we do with a graduate of al Qaeda training camps who hasn't yet committed an act of violence? What do we do if no country will take him? If Congress doesn't intervene, the most difficult detainee cases may end up being administered by federal judges who are dismissive of concerns about enemy combatants returning to the battlefield.

"Courts guarantee an independent process, not an outcome," wrote John Coughenour, the federal judge who presided over the trial of "millennium bomber" Ahmad Ressam in a Washington Post op-ed just this Sunday. Yes, and that is precisely why Congress has an obligation to formulate the substance and parameters of that process. Judges do not make law or policy. The scope of their review is limited to the immediate case before them.

Unless Congress weighs in, judges -- unaccountable to the body politic -- will decide what standards of proof and rules of evidence will apply to these detainees, resulting in an ad hoc, case-by-case body of law which focuses on the rights of the detainees, not on the consequences for our war fighters who risk their lives to capture them. Since when do we leave it to judges to decide when and to what degree our troops are required to engage in police duties in the heat of battle?

Further, judges only rule on the applications made by the lawyers who come before them. Despite their rhetoric about "rule of law," attorneys are not charged with acting in furtherance of the national security interests of the public. Their obligation is to their clients alone, the detainees. Hence, we have witnessed the six-year campaign by Gitmo lawyers to pressure the U.S. government into releasing dangerous men before their cases come before a military tribunal or are heard in the federal courts.

David Cynamon, a senior attorney at Pillsbury Winthrop Putnam Shaw, is one of the lead lawyers negotiating the repatriation of the Kuwaiti detainees. In an email last fall to Pentagon officials, Mr. Cynamon expressed frustration with what he perceived as foot-dragging in the release of the last four Kuwaitis still held at Gitmo. He attached an exhibit which compared the unclassified information on all original 12 Kuwaiti detainees who were captured in Afghanistan. "I find it impossible to deduce from this chart," he wrote, "that the four who remain are any more (or less) [sic] dangerous than the ones who were returned." After Al-Ajmi's devastating suicide attack in Mosul, one hopes the Pentagon is giving his chart a second look.

Meanwhile, the habeas attorneys' effort to smear the United States and paint their clients as innocent victims continues. "Poems from Guantanamo" was taught this spring in an undergraduate course called "Writers in Exile" at City University of New York in Queens, a short distance from Ground Zero. The book's introduction states that the detainee poets "follow in the footsteps of prisoners who wrote in the Gulag, the Nazi concentration camps, and, closer to home, Japanese-American internment camps." One of the students, posting on the class blog, wrote of the detainees' plight, "Wow, I had no idea. For the first time in my life, I am ashamed to be seen as an American."

Your whole being and your heart will be captivated by this night, who drove the Romans to madness. You will forget everything about Rome and will live the life of faith in Islam.

Abdullah Salem Al-Ajmi, the detainee who wrote of turning the tables on his lawyer, Miranda, should haunt the dreams of every member of Congress.

Ms. Burlingame, a former attorney and a director of the National September 11 Memorial Foundation, is the sister of Charles F. "Chic" Burlingame III, the pilot of American Airlines flight 77, which was crashed into the Pentagon on Sept. 11, 2001.

See all of today's editorials and op-eds, plus video commentary, on Opinion Journal.

After years of litigation, the first military commission trial of the war on terror -- United States v. Hamdan -- is underway in Guantanamo Bay, Cuba. Don't believe the critics who say justice isn't being done.

Salim Ahmed Hamdan was captured by American and allied forces in Afghanistan. The government maintains -- and Hamdan has confirmed -- that he was Osama bin Laden's driver and bodyguard. Hamdan is charged with conspiracy to commit war crimes and providing material support for terrorism.

Some of the complaints about the trial are trivial, such as that the proceedings are not televised (neither, of course, are the Supreme Court's). Other complaints are irrelevant, such as the claim that reporters cannot move about the Guantanamo base without an escort (try wandering unescorted into the Oval Office if you are on the White House beat).

Then there are the suggestions that the trial atmosphere feels wrong (all those uniforms in the "jury" box), and that the trial is going too fast compared with civilian cases. Since these are trials by military commission, the uniforms should have been anticipated. A quicker pace is also typical of military proceeding. Unlike civilian trial judges, military judges don't need to juggle civil litigation in addition to criminal cases on their dockets.

The real question, of course, is whether Hamdan is getting due process, and whether his trial is fair. The answer is yes. Hamdan has an able team of defense lawyers determined to squeeze from the system every drop of procedural advantage. They have, for example, made an unsuccessful attempt to have his trial postponed until after he has had a hearing in the civilian courts. Although the Supreme Court ruled in June that Guantanamo detainees can seek "habeas corpus" review, Judge James Robertson -- appointed by President Bill Clinton to the federal district court in Washington, D.C. -- ruled that the military commission trial can go forward.

Second, the defense has argued that the evidence against Hamdan should be excluded because it was obtained through "coercion." This claim mostly involves rough treatment after his capture in Afghanistan (he was held by both Afghan and American forces) and his being questioned during his long detention at Guantanamo.

The trial judge -- a military officer as provided by law -- excluded Hamdan's statements from Afghanistan (where questioning was, at times, by armed interrogators) but very properly rejected the defense claim that merely being held without trial as an enemy combatant, subject to Guantanamo's rules and discipline, was impermissible coercion. Captured enemy combatants can be so held, noted the judge. He consequently gave "little weight to the coercive effect" supposedly inherent in being detained for long periods without access to friends and advisers. Thus was the "best interest of justice" admissibility standard approved by Congress in the 2006 Military Commissions Act applied, proving that uniformed judges will say no to both the prosecution and defense.

Pretrial motions resolved, the prosecution has presented a compelling case. By his own admissions, Hamdan was part of Osama bin Laden's inner circle, even if not in a very senior position. Witnesses state that Hamdan has admitted responsibility for preparing bin Laden's transportation for rapid movement in case of American attacks, and was also aware of the Sept. 11 attacks in advance.

Hamdan has also offered information on other al Qaeda operations and its field logistics -- including bin Laden's manner of travel and security escort. The evidence so far has also confirmed an interesting tidbit about bin Laden's thinking. Because of a lack of a vigorous U.S. military response to the 1998 U.S. Embassy bombings and the 2000 Cole bombing, bin Laden evidently came to believe that the U.S. would never actually come after him in Taliban-controlled Afghanistan.

Under the standards applied in previous wars, these facts -- unless disproved or rebutted by the defense -- would fully justify Hamdan's conviction as an unlawful enemy combatant and a person who has rendered material support to a terrorist organization. He may have been a driver, but one who was trained as a terrorist and provided essential security and logistics support for al Qaeda's commander in chief. He was no more a civilian, entitled to trial in civilian courts, than were Hitler's SS bodyguards.

Hamdan's trial is an important test for the system as a whole. It will be followed in short order by that of Omar Khadr, a Canadian citizen also captured in Afghanistan -- at the age of 15 -- and accused of killing an American military medic. After that, the trials of far more senior al Qaeda members will follow. That includes Khalid Sheik Mohammed, the mastermind of Sept. 11.

In short, based upon the military commission rules and actual practice of the Hamdan trial we've seen so far, the U.S. is according the unlawful enemy combatants at Guantanamo the fairest war-crimes trials in history. That's right, more due process at Gitmo than during the post-World War II Nuremberg tribunal and at least as much as in the more recent Hague tribunal proceedings -- both of which are routinely extolled by the critics of military commissions. But none of this seems to matter to the critics, who continue stubbornly to insist that only the civilian justice system is acceptable for the Guantanamo detainees.

The U.S. must continue the military commission system. Only military courts that provide a fair hearing and sufficient protection for national security information can ultimately provide justice to both the detainees and the American people.

Messrs. Rivkin and Casey, Washington attorneys, served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.

While I and many others question the true "Threat of Islam" to American shores; I mean they are not Japan or Germanyin WWII, they are not Russia with sufficient nuclear warheads during the Cold War, or even China, a growing superpower; my real concern is the frightening erosion of our basic Civil Rights. The list in endless, but Hamdan's trial is but one example.

Innocent of conspiracy (no evidence) he was "convicted" and may be required to serve a life sentence for being Bin Laden's chauffeur and driver. A truly terrible crime? Yet he already has served years in jail and suffered inhumanetreatment.

A trial??? Few of his basic rights that we take for granted were given to him. The interrogation itself was admittedly fraught with improprieties and coercion. Witnesses were not produced. Basic rights were ignored. One can go on and on....

However, perhaps more damning, military authorities made it clear that even if Hamdon had been acquitted of all chargeshe would not have gained his freedom!!! "As an enemy combatant he can be incarcerated until the end of the so-called War on Terror." And that will be when??? Truly unbelievable and sad.

Imagine if your son was involved. Imagine if your son was interrogated without basic rights and possibly tortured. And yet was still found innocent, however you were told, "Sorry, he still can't go home until the "War on Terror" is over". Another words,he may not be going home in this lifetime, yet he is innocent. What respect do you have for his jurors? For the system? For ?

If you've read my posts, you know I am a fairly liberal guy. But even I can handle rounding up 300-500 guys who have been involved in extremely questionable circumstances and putting them away for a while. We haven't seen a large scale internment of Muslims or a complete collapse of our judicial system/civil rights as we know it, so I'm not sweating it.

Fair trial? Who wouldn't want one? But as I say to my wife on a regular basis, the best way to keep out of jail/away from a courtroom/not on the news/beaten badly/made an example of is to NOT ACT LIKE AN IDIOT. Behave yourself and chances are the words "fair trail" won't have to enter your vocabulary...unless it's in an internet forum.

GM; I can't answer for the Civil War or the American Indian wars either; hopefully we have evolved since then. And am not sure if Clinton was or could have been successful, but I do know Bush is a failure. My vote this year is anybody but...

Crafty; so then why doesn't the Geneva Convention then apply??? Etc. Etc. Etc. I think America is trying to have their cake and eat it too.What the heck is an "enemy combatant"? I understand the term POW, that's fine, but an "enemy combatant"? "Enemy Combatant" seems like a POW with no rights. That is not how America does things...Or it shouldn't... but then we are back to Bush.

You might want to actually read the Geneva conventions before you cite them. Until now, the US has never applied the US constitution to prisoners of war, even legitimate enemy soldiers in compliance with the laws of war.

The first attack on the WTC was in 1993. Clinton was across the river in New Jersey when it happened and couldn't be bothered to visit NYC to review the damage done. Al Qaeda metastasized into the global threat we face today under Clinton's two terms, the DOJ not indicting bin Laden until late 1998. Look at the strings of attacks during Clinton's terms in office, leading up to 9/11. I'm not sure how you think returning to that would result in anything but the same results.

Last time I checked, Bush wasn't running again, so you couldn't vote for him if you wanted to anyway.

You might want to actually read the Geneva conventions before you cite them. Until now, the US has never applied the US constitution to prisoners of war, even legitimate enemy soldiers in compliance with the laws of war.

The first attack on the WTC was in 1993. Clinton was across the river in New Jersey when it happened and couldn't be bothered to visit NYC to review the damage done. Al Qaeda metastasized into the global threat we face today under Clinton's two terms, the DOJ not indicting bin Laden until late 1998. Look at the strings of attacks during Clinton's terms in office, leading up to 9/11. I'm not sure how you think returning to that would result in anything but the same results.

Last time I checked, Bush wasn't running again, so you couldn't vote for him if you wanted to anyway.

Yes, thank God Bush is not running. Frankly, he should be impeached, but it is more bother than it is worth.

Ahhhh and as for the Geneva Convention; didn't America sign this??? Isn't America the land of "justice"? Don't we demand that our enemies adhere to these high standards? Don't we act indignant if they don't? Aren't we supposedly "better than them?"

The Geneva Convention; frankly, I am not sure you have read it and definitely Bush has not read it. Interrogation techniques - pure torture, a travesty of justice. So many provisions of the Geneva Convention have been broken it is hard to count. Again, thank God our U.S. Supreme Court read it and has also read our constitution and has therefore ruled Bush's definition of "Enemy Combatant" to be a bad joke. Germany has termed our treatment of prisoners as "torture". Guantanamo has been called the "gulag of our times.". British Judges have called it, "a monstrous failure of justice." Numerous Medical Journals have demanded that our treatment of prisoners stop; terming it "torture". And on and on... When will we stop??? Soon, but only thanks to the world's indignation at our inhumane treatment.

Fairness??? The military acts as interrogators (often illegal), prosecutors, and defense counsel, judge, jury and executioner. NONE of this guarantees a fair trial. America - where has our justice and sense of right and wrong gone? I bet less than 5% of those held at Guantanamo will even be finally charged with a crime, much less found guilty. The other 95% are innocent by definition; they are just being tortured and held illegally for years and years away from their family and friends and they have done nothing wrong except be in the wrong place and the wrong time. I find it all rather sad.

You might want to actually read the Geneva conventions before you cite them. Until now, the US has never applied the US constitution to prisoners of war, even legitimate enemy soldiers in compliance with the laws of war.

The first attack on the WTC was in 1993. Clinton was across the river in New Jersey when it happened and couldn't be bothered to visit NYC to review the damage done. Al Qaeda metastasized into the global threat we face today under Clinton's two terms, the DOJ not indicting bin Laden until late 1998. Look at the strings of attacks during Clinton's terms in office, leading up to 9/11. I'm not sure how you think returning to that would result in anything but the same results.

Last time I checked, Bush wasn't running again, so you couldn't vote for him if you wanted to anyway.

Yes, thank God Bush is not running. Frankly, he should be impeached, but it is more bother than it is worth.

Ahhhh and as for the Geneva Convention; didn't America sign this??? Isn't America the land of "justice"? Don't we demand that our enemies adhere to these high standards? Don't we act indignant if they don't? Aren't we supposedly "better than them?"

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.Article [Display Introduction] [Display Full text] [Display articles] [Display commentaries]Part I : General provisionsARTICLE 4A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, incuding those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.**Please explain how al qaeda would be covered by the definitions listed above.**

The Geneva Convention; frankly, I am not sure you have read it and definitely Bush has not read it. Interrogation techniques - pure torture, a travesty of justice. So many provisions of the Geneva Convention have been broken it is hard to count.

**Please cite a few, using the source documents.**

Again, thank God our U.S. Supreme Court read it and has also read our constitution and has therefore ruled Bush's definition of "Enemy Combatant" to be a bad joke. Germany has termed our treatment of prisoners as "torture". Guantanamo has been called the "gulag of our times.". British Judges have called it, "a monstrous failure of justice." Numerous Medical Journals have demanded that our treatment of prisoners stop; terming it "torture". And on and on... When will we stop??? Soon, but only thanks to the world's indignation at our inhumane treatment.

Fairness??? The military acts as interrogators (often illegal), prosecutors, and defense counsel, judge, jury and executioner. NONE of this guarantees a fair trial. America - where has our justice and sense of right and wrong gone? I bet less than 5% of those held at Guantanamo will even be finally charged with a crime, much less found guilty. The other 95% are innocent by definition; they are just being tortured and held illegally for years and years away from their family and friends and they have done nothing wrong except be in the wrong place and the wrong time. I find it all rather sad.

We have forgotten the difference between right and wrong.

**When and where in history has a war been fought that fits your vision of "fair and just"?**

So why does nearly every industrialized CIVILIZED nation (these are our allies and friends) on this earth think our behavior is reprehensible, wrong, terribly wrong? Even our own U.S. Supreme Court said enough is enough! Our actions, our behavior is unconscionable.

1 result for: unlawful combatant Browse Nearby EntriesWebster's New Millennium™ Dictionary of English - Cite This Source - Share ThisMain Entry: unlawful combatantPart of Speech: nDefinition: an individual who violates the law by engaging in combat; an individual who is involved in but not authorized to take part in hostilities; also called illegal combatant, unprivileged combatantExample: An unlawful combatant is someone who commits belligerent acts, but does not qualify under the Geneva Convention as a prisoner of war.

WHAT IS AN "UNLAWFUL COMBATANT," AND WHY IT MATTERS:The Status Of Detained Al Qaeda And Taliban FightersBy MICHAEL C. DORFWednesday, Jan. 23, 2002

According to Defense Secretary Rumsfeld, the Taliban and al Qaeda fighters currently being held captive at the United States Naval Base at Guantanamo Bay, Cuba, are not prisoners of war, but "unlawful combatants." What's the difference?

The short answer is that a prisoner of war is entitled to the protections set forth in the 1949 Geneva Convention. In contrast, an unlawful combatant is a fighter who does not play by the accepted rules of war, and therefore does not qualify for the Convention's protections.

Buried within that short answer, however, are a host of complexities and troubling implications.

Are al Qaeda Fighters Prisoners of War?

First, what does it take to qualify as a prisoner of war? Article IV of the Geneva Convention states that members of irregular militias like al Qaeda qualify for prisoner-of-war status if their military organization satisfies four criteria.

The criteria are: "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war."

Al Qaeda does not satisfy these conditions. Perhaps Osama bin Laden could be considered "a person responsible for his subordinates," although the cell structure of al Qaeda belies the notion of a chain of command. But in any event, al Qaeda members openly flout the remaining three conditions.

Al Qaeda members deliberately attempt to blend into the civilian population - violating the requirement of having a "fixed distinctive sign" and "carrying arms openly." Moreover, they target civilians, which violates the "laws and customs of war."

Thus, al Qaeda members need not be treated as prisoners of war.

Are Taliban Fighters Prisoners of War?

The question whether detained Taliban members qualify as prisoners of war under the Geneva Convention's test is more difficult - as one might instinctively think, given that the Taliban fighters resemble a traditional army to a greater extent than do the al Qaeda fighters, who come from a variety of different nations and principally attack civilians.

The Taliban was never recognized as the legitimate government of Afghanistan by the United Nations or the United States, and only a handful of countries ever established formal diplomatic relations with the Taliban. Nevertheless, despite its lack of formal recognition, the Taliban would still be entitled to the protections of the Geneva Convention if it satisfied the four criteria listed above.

Did it? To begin, the Taliban has, or at least formerly had, a tighter command structure than al Qaeda, suggesting it might satisfy the first criterion of "being commanded by a person responsible for his subordinates." However, Taliban members did not appear to satisfy the second and third criteria, for they did not wear uniforms that bore a "fixed distinctive sign recognizable at a distance," nor did they invariably "carry arms openly."

Should these facts disqualify them from prisoner-of-war status?

Until recently the Taliban was the actual (though not recognized) government of Afghanistan, and it was attacked as such by the United States, albeit in justifiable self-defense. If Taliban members did not wear distinctive uniforms before we attacked, one might think that they should not be faulted for failing to don such uniforms immediately once the shooting started.

But in the end, this argument is unpersuasive. The requirement of a distinctive sign is no mere technicality. Its object, like many of the laws of war, is to enable the enemy to distinguish combatants from civilians, and thus to minimize civilian casualties. Yet the Taliban made clear that it was not interested in complying with the letter or spirit of the law of war.

For example, when it still controlled Kabul, the Taliban hid military equipment among the civilian population. Furthermore, as the war unfolded, it became increasingly difficult to distinguish the Taliban from al Qaeda - which, as we have seen, clearly does not qualify to have its members treated as prisoners of war.

A Consequence of POW Status: No Tribunal Trials

Even if not technically prisoners of war, al Qaeda and Taliban captives still qualify for "humane treatment" under the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a resolution adopted by the United Nations General Assembly in 1988.

Moreover, one might wonder, what is the harm in affording the captives somewhat better treatment than they are entitled to under international law? After all, the Geneva Convention hardly requires that prisoners of war be housed in four-star hotels.

The Administration's objection to affording al Qaeda and Taliban captives prisoner-of-war status probably has less to do with the conditions in which the captives are held than with what the Administration plans to do with them in the long term.

Under President Bush's military order of November 13, al Qaeda members and those who harbored them can be tried by military tribunals. The Supreme Court approved the use of such tribunals for unlawful combatants in the 1942 case of Ex Parte Quirin.

Most of the public discussion of the President's order and the Quirin case has centered on the question of when a defendant can be subject to the jurisdiction of a military tribunal rather than a civilian court. But whatever the answer to that question, Quirin takes for granted that only unlawful combatants can be tried by the sort of irregular tribunals at issue in that case and contemplated by the President's order.

Lawful combatants - that is, prisoners of war - are entitled to substantive and procedural protections not contemplated by Bush's order. Accordingly, the question of whether al Qaeda and Taliban fighters are prisoners of war or unlawful combatants turns out to matter a great deal, at least potentially.

Does the Guantanamo Detention Moot the Issue?

To be sure, American courts might not have occasion to decide the question whether al Qaeda and Taliban captives are in fact unlawful combatants. That is because another Supreme Court decision - the 1950 ruling in Johnson v. Eisentrager - holds that enemy aliens who have not entered the United States are not entitled to access to our courts.

Accordingly, so long as the al Qaeda and Taliban fighters are held at Guantanamo Bay and thus not deemed to have entered the U.S., their only route of appeal would appear to be within the Executive Branch. Put more bluntly, they will have only the procedural recourse the Administration allows them.

However, the applicability of Eisentrager to the present circumstances is itself open to question, for two reasons. First, in that case, the Court relied on the existence of a formal declaration of war and the fact that the German petitioners were citizens of a hostile sovereign power.

In contrast, in the present conflict, whether Congress's joint resolution authorizing the use of force counts as a declaration of war, and whether al Qaeda is sufficiently state-like to count as a foreign sovereign, are open questions.

Second, while Eisentrager holds that the Constitution permits the government to deny enemy aliens outside the U.S. access to our courts, federal statutes can be construed to afford such enemy aliens greater court access than the Constitution alone requires. Under that construction, the President's military order would be invalid. (Note that the President's order also purports to eliminate judicial review even for aliens within the United States, a position clearly at odds with statutory and constitutional law, but one that is not directly relevant to the fate of the Guantanamo Bay captives.)

For these two reasons, Eisentrager's application to the present circumstances is uncertain. Accordingly, it is understandable that the Administration would be eager to classify those captives it plans to try by military commission as unlawful combatants.

If the captives are unlawful combatants, they fall within the rule of Quirin. And if so, it does not matter whether they also fall within the rule of Eisentrager: If they do not, they are entitled to habeas corpus review, but a court entertaining their habeas corpus petitions would be obliged to uphold their convictions under Quirin.

Another Consequence of POW Status: Repatriation

There is a further reason why the Administration is eager to deny prisoner-of-war status to the al Qaeda and Taliban fighters. Article 118 of the Geneva Convention requires that prisoners of war be "repatriated without delay after the cessation of active hostilities." Thus, if the captives are prisoners of war, they must eventually be returned to their home countries.

That prospect is troubling. At the end of a war between conventional foes, it is expected that repatriated fighters will resume their civilian lives. Individual veterans might continue to harbor ill will towards their former enemies, but for the most part, peace between nations tamps down such feelings.

But there is good reason to worry that Taliban and especially al Qaeda fighters will not so readily have a change of heart. Members of al Qaeda do not act out of patriotic duty to obey the commands of a military leader, but out of an ideology that instructs them to attack and kill American civilians as a means of entering the kingdom of heaven. It is doubtful that any formal cessation of hostilities would lead them to abandon what they regard as a jihad.

Moreover, unlike traditional soldiers, al Qaeda members do not need an army in order to act. As we have learned, they can act in small groups or even individually. For this reason, too, repatriation seems far more dangerous for an al Qaeda member than for a traditional soldier.

War Without End: Indefinite Detentions?

The truth is that whether we try them in civilian courts, courts martial, ad hoc military tribunals, or not at all, the al Qaeda and at least some of the Taliban captives may be too dangerous ever to be released. Assuming that many or most of them will not be subject to the death penalty, that commits the United States to detaining them indefinitely.

The Administration's response to this problem is to deem the Taliban and al Qaeda fighters unlawful combatants who are not entitled to anything better than indefinite detention.

As we have seen, the contention that these fighters are unlawful combatants is based upon a plausible reading of the Geneva Convention. Indeed, it would be difficult to come to any other conclusion when applying the Geneva Convention's four-part test to al Qaeda fighters.

Nevertheless, treating the al Qaeda and Taliban captives as prisoners of war, whether or not they are legally entitled to the status, would be less risky than it may at first appear. So long as al Qaeda and its deadly ideology exists, we cannot say that there has been, in the words of the Geneva Convention, a "cessation of active hostilities," entitling the captives to be released. In that respect, as in others, this is a different type of war indeed.

Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

For the record, I think the Bush team has gone places with interrogation techniques that I think both wrong and unsound. I also think that there has been a tremendous amount of dishonest and disingenuous hyperventilating by the Dems and the MSM. The cacophony generated by them leads good people such as JDN to assume that with so much smoke, there must be a lot of fire-- but if JDN is willing to reason with GM I think by the end of the conversation he may find that his thinking has changed in some respects. The Dorf piece he has posted answers quite directly many of the assertions/accusations that you raise. What say you?